INTRODUCTION

In India, adultery was sanctioned by patriarchy and male chauvinism. A guy who has sexual intercourse with a woman who is the wife of another man is guilty of this crime. And if the spouse agrees or colludes in the conduct, it is no longer considered adultery. In the event that her husband commits adultery, she has no rights. Adultery was once thought to be a bad conduct committed by either a married man or a married woman. In India, a woman who commits adultery is treated as a victim who has been persuaded by a man into doing so. This statute violates our constitutional ideals of equality, non-discrimination, and the right to a dignified life, among others.

Adultery has been declared illegal in more than 60 nations, including South Korea, South Africa, Uganda, Japan, and others, due to its gender discriminatory nature and violation of the right to private. Even Lord Macaulay, the originator of the penal code, objected to its inclusion as an offence in the penal code, arguing that it should be treated as a civil wrong instead. The law changes with time, and several recent decisions have broadened the scope of fundamental rights to reflect shifting society ideals and expanded individual liberty. This decision joins them in making history by overturning a 158-year-old law that has lost relevance as social and moral conditions have changed.

PROCEDURAL BACKGROUND AND FACTS OF THE CASE

The constitutional validity of Sections 497 of the IPC and 198 (2) of the CrPC is being challenged in this Writ Petition. This is a case of public interest.

Section 497 of the Indian Penal Code (IPC) is prima facie illegal since it discriminates against men and breaches Articles 14, 15, and 21 of the Indian Constitution. There is no clear justification to exempt one person from culpability when the sexual intercourse has place with both parties’ permission. As highlighted in the cases of Maneka Gandhi, R.D. Shetty, and E.P. Royappa, the abovementioned prejudice goes against the real scope and nature of Article 14.

The exemption offered for women does not fall within the purview of Art 15(3), and Sec 497 of the IPC cannot be regarded as a helpful provision. It also discriminates against women indirectly by assuming that women are the property of men, which is incorrect. This is further shown by the fact that if adultery is committed with the approval of the woman’s husband, the act becomes a crime punishable under the law. In Charu Khurana and Others v. Union of India and Others, this Hon’ble Court declared institutionalised discrimination unconstitutional.

Since sexual privacy is an inherent part of the “right to privacy,” the aforementioned clause is likewise affected by the ratio established in the Justice K.S Puttaswamy (Retd.) decision. Section 198 (2) of the CrPC also violates Articles 14, 15, and 21 of the Indian Constitution by prohibiting women from prosecuting anyone who commits adultery.

The respondents, on the other hand, believe that a consensual sexual connection outside of marriage would undermine the institution of marriage and hence does not merit protection under Art 21. Furthermore, where valid public interest is involved, the right to privacy and personal liberty is not absolute and is susceptible to reasonable constraints. Art 15(3) saves the provision as a special provision for the benefit of women, which is an enabling clause that prevents discrimination against women.

This clause has been challenged three times before this Hon’ble Court, the first time in Yusuf Abdul Aziz v. State of Bombay and Others, the second time in Sowmithri Vishnu v. Union of India, and the third time in V. Revathi v. Union of India.

FACTS

The Hon’ble President of India asked for a comprehensive overhaul of the Indian Penal Code in February 2016. The IPC has experienced very few revisions in the last one hundred fifty-five years, and archaic portions of the Code were sought to be deleted. Only a few offences have been added to the original list and made criminal. There are still violations in the Code that the British created to fulfil their colonial requirements. However, there are a slew of new offences that need to be defined and incorporated into the Code.” In light of this, it is argued that Section 497 is not only an out-of-date rule, but also illegal and a violation of fundamental rights.

Non-resident Keralite Joseph Shine filed public interest lawsuit under Article 32 of the Constitution in October 2017. The petition questioned the validity of the offence of adultery under Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code.

Section 497 of the IPC reads as follows:

“497. Adultery – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Section 198 (2) of CrPC states as follows:

 “For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

Sec 497 IPC, which was challenged, made adultery illegal by making a man liable if he has sexual relations with another person’s wife. Adultery carried a maximum sentence of five years in jail. Women were excluded from prosecution, including consenting parties.

Furthermore, a married woman could not file a complaint under Section 497 of the IPC if her spouse had sexual relations with an unmarried woman. This was due to Section 198(2) of the CrPC, which outlined how a complainant can submit charges for violations under Sections 497 and 498 of the IPC.

So, in essence, this case addressed two major concerns about adultery, namely-

1. Is Section 497 of the Indian Penal Code, 1860, unconstitutional because it is unjust, illegal, arbitrary, and infringes on fundamental rights?

2. Is Section 198(2) of the Code of Criminal Procedure, 1973, unconstitutional since it is unjust, illegitimate, and infringes on fundamental rights?

ARGUMENTS

Arguments in favour of Petitioners

The arguments in favour of petitioners are as follows:

1. In today’s culture, the historical context in which Sec 497 was framed is no longer applicable.

2. Sections 497 IPC and 198 CrPC are arbitrary in nature and violate Art 14 of the Constitution by denying women the ability to prosecute their unfaithful husbands. It violates the principle of equal treatment by discriminating against people based on their marital status.

3. Section 497 criminalises adultery solely on the basis of a sex-based categorisation, which has no reasonable connection to the goal sought and is thus discriminatory.

4. Only the male-paramour is liable for adultery under Section 497. Even as a “abettor,” the woman who is pari delicto with the adulterous male is not punished.

5. Under Art 21, the right to privacy would include the right of two adults to have a sexual relationship outside of marriage.

6. As a clause that perpetuates women’s oppression in law, Art 15(3) cannot be used as a cover for an offence with criminal repercussions, and it cannot hide behind the appearance of protected discrimination.

7. Under Art 15 of the Constitution, anything that restricts women’s ability to prosecute cannot be called “useful legislation” (3). Furthermore, the woman’s permission has no bearing on the crime.

8. The Court stated that, on the face of it, Sec 497 treats women as second-class citizens in that it states that there is no crime if the man is complicit or consents. It treats her as if she were a man’s property, completely subject to the master’s will.

9. It would be ridiculous to continue on the basis that a married woman who consciously and voluntarily enters into a sexual connection with another married man is a “victim” and the male perpetrator is the “seducer” even in a consenting relationship.

10. An extramarital connection with an unmarried woman, a widow, or a divorced woman is not covered by Section 497 IPC.

11. Under Section 497, an adulterous relationship between a man and a married woman that occurs with her husband’s consent and connivance is not considered adultery.

12. The woman’s husband is regarded to be aggrieved by a crime committed under Section 497 IPC, and in the absence of the husband, any person who had care of the woman on his behalf at the time the offence was committed with the court’s permission. It does not consider the adulterer’s wife to be an aggrieved party. As we have discovered, the offence and the presumptive definition of an injured person are completely and clearly arbitrary.

13. Sec 497 fails to meet the three-part test for a fair and valid restriction on Art 21: legality, necessity, and proportionality.

Arguments in favour of Respondents

The arguments in favour of the respondents are as follows:

1. 1. A married person’s right to have a consensual sexual relationship outside of marriage is not protected under Art 21. Furthermore, where valid public interest is involved, the right to privacy and personal liberty is not absolute and is susceptible to reasonable constraints.
2. 2. Art 15(3), which is an enabling provision providing for protective discrimination, saves Sec 497 since it was a specific provision for the advantage of women.
3.  An conduct that offends society’s morality and hurts its members should be punished as a crime. Adultery is clearly included in this definition.
4. Behaviour that offends society’s morality and causes harm to its members should be considered a crime. This definition certainly includes adultery.
5. The family is society’s most essential unit; if it is disrupted, it will have an influence on stability and progress. As a result, the preservation of marriage is a justifiable public interest for the state.
6. Adultery not only jeopardises the marriage between two consenting adults, but it also has an impact on children’s maturation and moral fibre. As a result, the State has a valid public interest in criminalising it.
7. The family is society’s core unit; if it is disrupted, it will have an influence on stability and progress. As a result, the preservation of marriage is a justifiable public interest for the state.
8. Adultery not only jeopardises the marriage between two consenting adults, but it also has an impact on children’s maturation and moral fibre. As a result, the State has a valid public interest in criminalising it.

JUDGEMENT

The Court struck down Sec 497 as unconstitutional being violative of Art 14, 15 and 21 of the constitution and held that Sec 198(2) of CrPC shall be unconstitutional to the extent that it is applicable to Sec 497 IPC.

The Court took into consideration the following matters while passing the judgment.

1. An individual’s autonomy to make decisions about his or her sexuality is the most personal choice he or she can make, and it should be safeguarded from public scrutiny through criminal consequence.

2. A crime punishable by criminal penalties must be a public wrong against society as a whole, not just an act perpetrated against a single victim.

3. A patriarchal monarchy over the daughter, or a husband’s monarchy over the wife, is impossible. There can’t be a public display of masculine power either.

4. Section 497 was enacted in 1860 as a pre-constitutional statute. In a pre-constitutional statute (such as Section 497) enacted by a foreign legislature, there would be no presumption of validity. The provision would have to be put to the test on the anvil of the Constitution’s Part III.

5. The right to live in dignity includes the right not to be publicly chastised or punished by the state unless it is absolutely required. To establish what conduct necessitates state intervention through criminal consequence, the State must consider whether a civil remedy will suffice, as well as the impact of such behaviour on society.

6. According to Andrew Simester and Andreas von Hirsch, a crucial precondition for criminalization is that the behaviour is morally reprehensible. While sexual infidelity may be ethically unacceptable, this may not be enough to make it illegal. The Injury Principle asserts that criminalization must include three elements: I harm, (ii) wrongdoing, and (iii) a public element. Before the State can categorise an unlawful conduct as a criminal offence, certain factors must be proven.

7. Criminal law must be consistent with the morality enshrined in the Constitution. The legislation on adultery imposes a marriage structure in which one partner relinquishes her sexual liberty to the other. Sec 497 does not pass constitutional muster since it is incompatible with the constitutional guarantees of liberty, dignity, and equality.

8. According to the Malimath Committee on Criminal Justice Reforms, Section 497 should be modified to read: “Whoever has sexual intercourse with the spouse of another person is guilty of adultery.”

9. The Law Commission of India’s 156th report proposed that an amendment be introduced to reflect the principle of gender equality in marriage in relation to the crime of adultery. In addition, it was urged in its 42nd report that the adulterous woman be made equally accountable for prosecution.

CASE COMMENTARY

The judgement took a positive step forward by striking down Sections 497 IPC and 198(2) of the Criminal Procedure Code, both of which are founded on gender discrimination. The clause is discriminatory in two ways: first, it denies women the power to prosecute an unfaithful husband, and second, it does not punish an adulterous wife, even if she is a “abettor.”

Furthermore, this decision has put the concept of transformative justice into practise.

However, the decision has created an oddity in the field of adultery law by making the conduct of adultery unpunishable The verdict has been criticised for taking away remedies open to any spouse whose partner commits adultery.

Furthermore, the ruling is silent on the impact of the decision on social institutions such as marriage, as well as on children born out of such relationships or involved in comparable situations in any other way.

CONCLUSION

While the court justifies the provisions by insinuating that women are unfit to be allowed agency, men’s rights campaigners (revengefully) urge that the provision be evaluated to eliminate the woman’s immunity from punishment. Both are overly patriarchal perspectives on the problem. The reserved judgement has the option of diverging from these lines of arguments and focusing on the central issue: women’s legal disempowerment.

It’s important to remember that the removal of these prohibitions doesn’t mean there aren’t any legal repercussions for adultery. These penalties do not have to be criminal, and a remedy may be found under civil law, which already recognises adultery. In personal law, it is a reason for divorce. This strategy is also in line with the right to privacy and does not require the government to spend more money.

Cruelty under section 498A, as well as the definition of domestic violence under the Domestic Violence Act of 2005, can cover a woman’s mental suffering induced by her husband’s adulterous connection.

BIBLIOGRAPHY

1. http://www.legalserviceindia.com/legal/article-3127-joseph-shine-v-s-union-of-india.html
2. https://www.legalbites.in/case-comment-joseph-shine/
3. https://www.google.com/amp/s/lawlex.org/lex-bulletin/case-analysis-joseph-shine-vs-union-of-india-2018/20266
4. Indian Penal Code (IPC) by C.K. Takwani (Edition: 2014 Edition)
5. Criminal Procedure by R.V Kelkar, revised by K.N Chandrasekharan Pillai (Edition: 6th Edition 2014, Reprinted 2020)

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