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Constitutional Validity Of Section 497 Of IPC (Adultery) And Section 198(2) Of Crpc

Joseph Shine v/s Union Of India

Facts Of The Case
The hotelier Joseph Shine questioned the legality of section 497 of the Indian Penal Code. The main goal of this petition was to protect Indian men from being punished by vindictive women or their husbands for having extramarital affairs. In Kerala, a close friend of the petitioner committed suicide after a female co-worker falsely accused him of rape. Section 497 is a heinous example of masculine patriotism, authoritarian imperialism, and sexual injustice. In today's society, the traditional paradigm used to create section 497 is no longer relevant.

Supreme Court of India
A constitutional bench comprising five judges: Hon'ble Judges, Dipak Mishra, Rohinton Fali Nariman, D.Y.Chandrachud, A.M.Khanwilkar, Indu Malhotra, JJ.
Writ petition (Criminal) no. 194 of 2017 - The decision was declared on 27 September 2018.

Question Of Law In The Case
  1. Whether Section 497 of IPC and Section 198(2) of CrPC are constitutionally valid?
  2. How do section 497 of IPC and Section 198(2) of CrPC violate Article 14, Article 15, and Article 21 of the Indian Constitution?

Section 497 of IPC:


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[1].

Interpretation Of The Judges
How Section 497 Of IPC Is Violative Of Article 14 Of The Indian Constitution

Article 14 - Equality before law:
the state shall not deny to any person equality before the law or equal protection of laws within the territories of India[2].

Dipak Mishra:
Section 497 of IPC treats married women as the property of their husbands. The section does not cover the wife as an aggrieved person whose husband has an extramarital affair with any other woman. But if the wife indulges in an extramarital affair with some other man, the husband in this case can be termed as an aggrieved person. Thus, the definition of 'aggrieved person' in the section is arbitrary. It does not allow the wife of an adulterer to file a case against her husband.

Rohinton Fali Nariman (Concurring):
Section 497 says that a man who performs adultery on a woman with her husband's consent does not amount to adultery. Thus making the woman chattel of her husband. The Indian society being patriarchal is the thought that a woman can not an adulterer or abettor in the act of adultery. It is the third person liable for performing such an activity.

Indu Malhotra (Concurring)
There are two classifications:
  1. Who has the right to prosecute?
    The married woman whose husband is an adulterer should be considered an aggrieved person. The wife should be given the prosecute her husband.

    In Section 497 of IPC, the wife is entitled to prosecute neither her husband nor her paramour.
  2. Who can be prosecuted?
    Only the man performing adultery in a consensual act should be prosecuted. In certain circumstances, a woman can also be considered an adulterer or abettor. Section 497 is under IPC which got into force in India in 1860, at that time in society women were considered as the chattel of their husbands. Thus, the act of adultery was considered theft of the property of a man.
The provision of adultery is not gender-neutral
  1. It does not consider a woman as an adulterer or abettor in nature thus she cannot perform adultery over any other man than her husband.
  2. A man can be considered an aggrieved person if his wife has extramarital affair with another man but a wife cannot be considered an aggrieved person if her husband does adultery or has extramarital affairs with another woman.

How Section 497 Of IPC Is Violative Of Article 15 Of The Constitution

Article 15:
State shall not discriminate any citizen on the ground only of religion, race, caste, sex, place od birth or any of them.

Rohinton Fali Nariman:
Section 497 does not protect and preserve the sanctity of marriage where in this society a woman is considered as a chattel of a man and of submissive and passive nature and not expected to exercise their sexual agency during married but infidelity of men is normal. The section discriminates against women on the basis of sex. If the offender is a married woman who is on the process of seeking divorce with her husband indulging in sexual activity with another man, the man becomes liable without doing any offence.

D.Y. Chandrachud (concurring):
As the women are concerned, no recourse is provided to the woman whose husband has been indulged in sexual activity with some other woman thus, the section violates article 15(3) of the constitution.

Indu Malhotra:
The act committed by both adults consensually out of marital bond, this cannot be considered beneficial under article 15(3).

How Section 497 Is Violative Of Article 21 Of The Constitution
Article 21 - Protection of life and liberty - No person shall be deprived of his life or personal liberty except according to a procedure established by law[3].

Section 497 curtails consensual equality, the essential dignity of women by creating an individual distinction on gender stereotypes. It directly creates a dent in the dignity of women leading to the subordination of women.

Violation Of The Right To Privacy Of Women

Section 497 of IPC is violative of the human factors of a woman such as a dignity, autonomy, desire, choice and identity. By autonomy of an individual, it means autonomy of body and mind. Mental integrity and privacy entitle individuals to the freedom of thought, freedom of belief what is true and freedom of self-determination.

D.Y. Chandrachud:
Under this section women do not have autonomy over their own bodies. They are considered to be chattel of their husbands. Thus, women and men are not kept on the same pedestal which violates Article 14. Since women cannot choose their way of life and are not allowed to make choices violates Article 21 of the Constitution.

Dipak Mishra:
If adultery continued to be an offence or crime, it would involve intervention from the state. Thus hindering the right to privacy in marriage leading it to an unhappy marriage.

Constitutional Validity Of Section 198(2) Of Crpc.

Section198(2) of CrPC - 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 the care of the woman on his behalf at the time when the such offence was committed may, with the leave of the Court, make a complaint on his behalf[4].

Section 198(2) of CrPC is violative of Article 14 of the Constitution of India which talks about equality of an individual before law. Section 198(2) of CrPC treats the husband of an adulterous wife to be an aggrieved person but wife of an adulterous husband is not considered to be aggrieved. Thus, it does not treat both husband and wife to be equal rather husband is more liberal than wife.

D. Y. Chandrachud (Concurring) - An adulterous man will be liable for the act of adultery only when the husband of the wife (the victim of adultery) consents to held guilty the adulterous man. This implies that the wife of the man who has engaged in the act of adultery has no voice of agency under the statute.

Indu Malhotra J. (Concurring) - Provision under Section 497 of IPC can only be applied to the male paramour in the act of adultery. Adulterous women are excluded from the ambit of adultery and as an abettor as well. This provision is absolutely gender based. Also wife of an adulterous man has no rights to prosecute neither her adulterous husband nor his paramour. Section 497 of IPC along with Section 198(2) of CrPC empowers the aggrieved husband, of a married wife who has indulged in the adulterous relationship to initiate the proceedings for the offence of adultery.

Order Of The Judgement
The order of Supreme Court for the judgement is that adultery shall be decriminalized. If it will remain a crime, will attract interference from the government leading it to hinderance in privacy of the matrimonial relationship. Thus, offence of adultery remains a ground of divorce and not a crime.

  1. Constitution of India
  2. Indian Penal Code (IPC)
  3. Criminal Procedure Code (CrPC)
  1. Indian Penal Code, pp.108
  2. Constitution of India, pp.25
  3. Constitution of India, pp.28
  4. Constitution of India, pp. 86
Written By: Anshul Neelam

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