Case Comment: Joseph Shine vs. Union of India (2018)

Introduction

The Supreme Court has struck down the 158-year-old Victorian Morality law on Adultery in its recent judgment in the case of Joseph Shine v. Union of India[1]. The judgment is one of its kind and has overruled all the previous judgments upholding the criminalisation of adultery. With pros come cons and the same is likely to be the case with this judgment. So, now Adultery has become legal but is still not ethical. The institution of marriage depends upon the confidence of partners in each other. The Court has stepped back from interfering in the personal and moral lives of the people. Adultery is now just a civil wrong for which the remedy is divorce.

Background

The question of the constitutional validity of Section 497 of the Indian Penal Code and Section 198 of the Criminal Procedure Code has arisen before the Supreme Court multiple times.

In the case of Yusuf Abdul Aziz v. State of Bombay[2], the appellant was being prosecuted for adultery under Section 497 of the Indian Penal Code. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional validity of the provision, under article 228. The case was decided against the appellant by an observation was made by Justice Chagla about the assumption underlying Section 497:

“Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasizes that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are passed, when women were looked upon as property by their husbands.”

A narrow challenge was addressed before the Court. The challenge was only to the prohibition on treating the wife as an abettor. It was considered violative of Article 14 of the Indian Constitution. However, the court held that this provision was saved by clause (3) of Article 15 of the Indian Constitution which provides for special provisions in the case of women and children.

The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, this section was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole. A person engaging in sexual relations with the wife of another man won’t be charged for adultery if the husband of the wife so involved gives his consent. This clearly indicates how women are objectified in the hands of their husbands.

In one more case, Sowmithri Vishnu v. Union of India[3], three grounds of challenges were kept in front of the court. First, Section 497 gives the right to the husband to bring an action upon the adulterer but does not give this right to the wife to prosecute the woman with whom her husband has committed adultery. Second, the section does not give the wife whose husband has committed adultery to prosecute him and third, it doesn’t cover cases in which the husband has sexual relations with an unmarried woman.

At first blush, it may appear as if it is beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in a kind of romantic paternalism which stems from the assumption that women are like chattels of men. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other hand, it does not protect the other woman. In this judgement, it was said by Chandrachud, CJ that by definition, the offence of adultery can be committed by a man and not by a woman.

The task of making this provision gender-neutral is the job of the Legislative. The judgement says that :

“…It is commonly accepted that it is the man who is the seducer and not the woman. The position may have undergone some change over the years, but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to make note of the ‘transformation’ which the society has undergone..”

This case fails to deal with the actual problem, i.e. the aspects of constitutional jurisprudence which have a bearing on the validity of Section 497.

In another case, V Revathi v. Union of India[4], the court noted that this section does not allow either the husband of the offending wife to prosecute her nor does it permit the wife of the offending husband for being disloyal to her. It was held that since neither of the spouses can bring a charge against their disloyal and offending spouses, therefore, this section doesn’t discriminate on the ground of sex.

Issues

Whether Section 497 IPC is unconstitutional?

The petitioners wanted certain problems with Section 497 to be addressed:

• adultery law is made gender neutral. This is because the law calls for the man to be punished in case of adultery, but no action is suggested for the woman
• As per Section 497, a woman cannot file a complaint against her husband for adultery because there is no such legal provision.
• Women are treated as an object under the adultery law because according to section 497 if the husband agrees, the act is not a crime.

Judgement

In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. A three-judge bench, headed by the then-Chief Justice of India, Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.

While hearing the matter previously, the court had observed that the law seemed to be based on certain “societal presumptions”. In four separate but concurring judgements, the court struck down the law and declared that the husband cannot be the master of his wife. The five-judge bench comprised Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra.

The judgement held the following things –

• SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY INVALID.

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage that subverts true equality. Equality is subverted by lending the sanctions of the penal code to a gender-based approach to the relationship of a man and a woman. Sexual autonomy is a value that is an integral part and falls within the ambit of personal liberty under Article 21 of the Indian Constitution. Along with other things, it is very important to recognise the expectations one has from a relationship and to acknowledge them. One of these expectations is that each will provide the same element of companionship and respect of choices. Respect for sexual autonomy is established only when both spouses treat each other with equality and dignity.

This section is a denial of substantive equality in that it reinforces the notion that women are unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal order which regards them as the sexual property of their spouse.

In this way, it is violative of Article 14. It is based on gender stereotypes and violates the non-discrimination clause of Article 15. Besides, the emphasis on the element of connivance or consent of the husband is tantamount to the subordination of women. Therefore, it clearly offends Article 21 of the Constitution.

• SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE.

A crime is something that is committed on society as a whole, while adultery is more of a personal issue. Treating adultery as a crime would be tantamount to the State entering into a real private realm. Adultery doesn’t fit into the concept of the crime as that would otherwise invade the extreme privacy sphere of marriage. However, it continues to stand as a civil wrong and a grounds for divorce. What happens after adultery is committed should be left to the husband and wife to decide as it is something which should only involve their personal discretion. It is difficult for the court to construe the different circumstances which have led them to this stage. Hence, declaring adultery as a crime would somehow creep injustice into the system.

• A HUSBAND IS NOT THE MASTER OF HIS WIFE.

The judgement places reliance on the fact that women should not be considered as the property of their husbands or fathers, for that matter, anymore. They have an equal status in society and should be given every opportunity to put their stance forward.

• SECTION 497 IS ARBITRARY:

Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow.

Analysis

In the instant case, Supreme Court struck down Section 497 IPC. With a single stroke of a pen, the Court has added its bit to endanger the institution of marriage. Winds have been cast to dilute the institution upon which the strong foundation of the Indian Society rests. The deterrence effect has been outrightly blown. This cessation will lead to rapid profiling in the crimes related to adultery. With absolute rights come absolute consequences. Hence, this verdict can lead to sexual anarchy. Adultery is no longer a criminal offence now. It is just a civil wrong for which divorce is the remedy.

A moral wrong can never be a legal right. The reasons are unconvincing and hence this cannot become Lex Loci. If Adultery is not a crime or a wrong, then obtaining a divorce on this ground would be an unending chase.

Criminal law is a guardian of the historical roots and moral principles of society.

“If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter-narrative would always exist.”[5]

In State of UP v. Deoman Upadhyaya[6], Constitution Bench of the Supreme Court observed :

“In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.”

Even the Legislative intent was to protect the women. That’s why the Law Commission while drafting the new Penal Code in 1847 rendered only the male offender liable. Moreover, it is for the legislature to decide what is a crime and what is not.

Adultery, though an intervention in the right to privacy, wrecks the life of another person. It doesn’t only affect the offending spouses and the victim spouses but also takes down with it the children and the families associated. With rights come duties and absolute rights destabilise a society. The children will be left in a lurch with divorce as the only option left. The present judgment does not provide for any remedies for the children born out of such adulterous marriages.

Section 497 IPC acted as a deterrent so that the adulterer does not commit the same crime again. The law didn’t fail to prevent adultery, but the enforcement did. Just because of this reason, it cannot be decriminalised. A whole house can collapse with the collapse of a single brick. Crime rates in rape, murders etc. are also increasing rapidly but these are not decriminalised relying on this argument.

India is still a semi-feudal and conservative nation. So adjudication merely on the notions of the western countries is not possible. Many factors concerning the socio-economic order of the country need to be considered.

It was well observed by Justice Frankfurter in Trop v. Dulles[7]:

“All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune from this human weakness. It must always be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint on it is self-restraint. The Court must observe fastidious regard for limitations on its own powers, and thus preclude the Court giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit on the wisdom of Congress or the Executive Branch.”

As observed by the Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi [8], “Adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges preferences “, and as held in State of Bihar vs Kameshwar Singh[9], “The legislature is the best judge of what is good for the people by whose suffrage it has come into existence.”

The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under Section 306 relating to abetment of suicide will take place.[10]

It would have been balanced if the section was amended instead of being struck down. The exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of it”. [11]

Instead, Section 198 of the Code of Criminal Procedure, 1973 should have been struck down as it prevents wives from filing complaints against adultery.

As rightly cited by J. Indu Malhotra in her judgment that “Women are no longer invisible to law, and they no longer live in the shadows of their husbands.”

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By Nandini Gupta And Gargi
University Institute of Legal Studies, Punjab University

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Footnotes:

[1] 27 September 2018

[2] Yusuf Abdul Aziz v State of Bombay, 1954 SCR 930.

[3] Sowmithri Vishnu v Union of India, 1985 Supp SCC 137.

[4] V Revathi v Union of India, (1988) 2 SCC 72.

[5] Sudhir Mishra, Should Adultery be a Crime?, The Hindu (December 22, 2017), Available Here

[6] State of UP v. Deoman Upadhyaya, 1960 AIR 1125.

[7] (1958) 356 US 86

[8] 2001 AIR para 54

[9] 1952 1 SCR 889

[10] Aabha Singh, Decriminalisation of Adultery, Outlook (SEPTEMBER 27, 2018), Available Here

[11] Sabarish Suresh, The truth behind cheating – Revisiting adultery judgments in India, The Quint ( JULY 10, 2018), Available Here

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