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Elimination Of A Discriminatory Law: Joseph Shine v/s Union of India

Every normal human being is born with a neuro-physiological urge and desire to have sex. This yearning to get the physical needs satisfied, that is having sexual passion is a "too natural" human behavior.

Marriage is a social and spiritual contract underlying a permanent relation and connection based on the mutual consent of the spouses. It is an institution that legalizes the outflow of sexual passion and urge with the respective spouse for the orderly growth of population.

In most cases, adultery is found to be the result and not the cause of unhappy marriage. Adultery may be defined as the intimate sexual relationship between a married man or woman with someone else other than his or her spouse. Section 497 of the Indian Penal Code defines adultery which affirms that 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 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 the imprisonment of either description for a term which may extend to five years, or with fine, or with both.1

The notion of moral discourse of the validity of this section has several times come across the ambit of the courts. In the case JOSEPH SHINE V. UNION OF INDIA2, on 27th September 2018, the Supreme Court finally struck down the ancient Victorian morality law on adultery.

The Preliminary Plight

It wouldn't be wise to consign the 158-year-old law to the proverbial dustbin of history. But, due to the presence of lacunae in the law, several times it has been confronted before the courts. The constitutional validity of the law on adultery was for the first time questioned before the Bombay High Court in the case, Yusuf Abdul Aziz V. State of Bombay.3

The appellant filed a petition before the High Court under article 228 of the Indian Constitution challenging the constitutional validity of section 497 of the IPC as it wholly punishes men who are adulterous while the women are exempted from the liability for participation in the same activity.

It was argued that solely punishing the male offenders and leaving the female involved unpunished is violative of Article 14 which ensures the Right of Equality in the Indian Constitution. This was defended by the respondent stating that the society generally accepts that it is the man who is the seducer and not the woman. Therefore, the law prosecutes the adulterous man to protect the sanctity of marriage.

The court opined that the question of equality cannot be put up here and that the law is applied differently to men and women as the offense under S.497 of the Indian Penal Code was not meant to affect the woman in any way. Hence, the appeal was dismissed.

Law on adultery was impeached again before the honorable Supreme court Sowmithri V. Union of India.4 The main issues raised were that the husband of a woman involved in the illicit act of adultery has the right to take action against the adulterer, but the wife has neither the right to do same against such a man and nor against the woman with whom her husband was involved in the extra marital relationship or committed adultery.

Also, Section 497 does not take the note of the cases where a man has the physical involvement with an unmarried woman, which makes the husband free to establish extra marital affair with an unmarried woman.

The Court took into consideration the arguments from both the petitioner and respondent, concluded that the arguments by the petitioner have emotional relevance but do not have any legal basis for support. The appeal by Sowmithri Vishnu was denied and it was also expressed that it is the man who is the seducer, and the offence of adultery can only be committed by a man by definition itself.

Women Inured To Injustice

The wife could not sue her adulterous disloyal husband and the respective adulteress woman engaged. In other words, women could neither sue and nor be sued for the offence of adultery. Section 198(2) of The Code of Criminal Procedure provided only for resentful husband the right to sue the man with whom his wife was involved in an illicit relationship.

These provisions are made for social good and for the maintenance of sanctity of the institution of marriage, as held in V. Revathi v. Union of India 5 where the petitioner challenged the constitutional validity of clause 1 & 2 of Section 198, CrPc. This clearly showed the helplessness and predicamental sate of women.

Despite being impeached several times in the courts, Section 497 stood valid for years in the Indian Penal Code. But in contemporary times, adultery is no longer an offence punishable under IPC. It may be considered immoral and merely a civil wrong which can be a firm ground for divorce.

Pronouncement To Ameliorte Situation

A non-resident Keralite, Joseph Shine has filed a Public Interest Litigation before the hon'ble Supreme Court under Article 32 of the Indian Constitution. He did so because one of his friends being falsely charged of rape by a co-worker in his factory, committed suicide. The petition filed challenged the law on Adultery covered under Section 497 of The Indian Penal Code, read with Section 198(2) of CrPC, 1973 which provided how a complainant can file charges against the offences cover under section 497 and 498 od IPC.

The object to file this petition was to protect man from such false charges and mental harassment. The petitioner opposed the law on adultery and believed it to be arbitrary and discriminatory as it is a gender-based law. Also claimed that such laws demolish the dignity of a woman and intervene in the extreme privacy of a marital relationship.

The Constitution of India guarantees the Right to Life to every person under Article 21. And Right to Life does not only include the physical life but everything that is prerequisite to live a dignified life.

The case of Joseph Shine v. Union of India was heard by the Indian Supreme Court in September 2018. The case dealt with the constitutionality of Section 497 of the Indian Penal Code, which criminalized adultery. The petitioner, Joseph Shine, argued that the law was discriminatory and violated the right to equality and privacy guaranteed by the Indian Constitution. The respondent, the Union of India, defended the law as a means of protecting the sanctity of marriage.

The Supreme Court, in this landmark decision, struck down Section 497 of the Indian Penal Code as unconstitutional. The Court held that the law was arbitrary, discriminatory and violated the right to equality guaranteed under Article 14 of the Indian Constitution. The Court also held that the law violated the right to privacy guaranteed under Article 21 of the Constitution.

The Court noted that the law only criminalized the man involved in adultery, and not the woman. The Court held that this was discriminatory, as it assumed that the woman involved in adultery was a victim and not a perpetrator. The Court held that this assumption was based on gender stereotypes and was therefore unconstitutional.

The Court also noted that the law violated the right to privacy, as it allowed the state to intrude into the private lives of individuals. The Court held that the right to privacy extended to the intimate relationships of individuals, and that the state had no business interfering in such relationships.

The judgment in Joseph Shine v. Union of India is a significant step forward for gender equality and individual rights in India. The Court's decision to strike down Section 497 of the Indian Penal Code as unconstitutional reflects a growing recognition of the need to eliminate discriminatory laws that perpetuate gender stereotypes and violate individual rights. The judgment also reaffirms the importance of the right to privacy as a fundamental right guaranteed by the Indian Constitution.

The decriminalization of adultery is a positive development for several reasons. First and foremost, it promotes the values of gender equality and individual autonomy. Prior to this decision, only men could be punished for committing adultery, while women were treated as passive victims. This approach was based on outdated gender stereotypes and reinforced patriarchal attitudes that view women as the property of their husbands. By striking down this discriminatory law, the Supreme Court of India has taken a step towards ensuring that both men and women are treated equally under the law.

Secondly, the decriminalization of adultery recognizes the importance of personal privacy and freedom. The previous law allowed the state to interfere in the private lives of individuals and dictate how they conduct their intimate relationships. This violates the basic human right to privacy, which is enshrined in the Indian Constitution. By striking down the law criminalizing adultery, the Court has recognized the importance of individual autonomy and the need for the state to respect personal privacy.

Also, decriminalization of adultery is likely to have positive social consequences. Criminalizing adultery could lead to social stigma and ostracism, which can be detrimental to the well-being of individuals and families. By decriminalizing adultery, the Court has removed this legal sanction and provided individuals with greater freedom to make their own choices about their relationships. This is likely to reduce social stigma and promote more open and honest communication within relationships.

The decriminalization of adultery is a positive development for India. It promotes the values of gender equality and individual autonomy, recognizes the importance of personal privacy and freedom, and is likely to have positive social consequences. This decision reflects a growing recognition of the need to eliminate discriminatory laws and promote human rights in India.

  1. The Indian Penal Code, 1860 (Act 45 of 1860), S. 497
  2. AIR 2018 SC 1676
  3. AIR 1951 SC 321
  4. AIR 1985 SC 1618
  5. 1988 AIR 835 1988 SCR

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