| Citation | (2018) SCC |
| Date of Judgment | 27TH July 2018 |
| Court | Supreme Court of India |
| Case Type | Writ Petition (Criminal) No.194 of 2017 |
| Appellant | Joseph Shine |
| Respondent | Union Of India |
| Bench | Chief justice Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra and Justice R.F. Nariman |
| Referred | Section 497 Of IPC and Section 198(2) Of CrPC |
FACTS OF THE CASE
A writ petition (Criminal) No. 194 of 2017 has been filed in the court by the hotelier Joseph Shine, as 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 coworker falsely accused him of rape. Additionally, 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 of the Indian Penal Code is no longer relevant.
Background of The Case
The petitioners are having some serious questions regarding the section 497 of IPC and section 198 of CrPC about their constitutional validation. The constitutionality of Sections 497 of the Indian Penal Code and 198 of the Criminal Procedure Code has previously been contested before the Supreme Court of India on a number of occasions. In the Yusuf Abdul Aziz v. State of Bombay case, the husband was charged with adultery in violation of Section 497 of the Indian Penal Code. The spouse, however, moved to the Bombay High Court after the case was filed to inquire about the constitutionality of the rules under Article 228 of the Indian Constitution. Justice Chagla made a comment regarding the presumption outlined in Section 497 after the case was resolved against the spouse. Mr. Peerbhoy is correct when he asserts that the fundamental tenet of Section 497 is that wives are the husbands’ property. That viewpoint is reinforced by the fact that this offense can only be prosecuted with the husband’s cooperation. One could claim that Section 497 has no place in a contemporary code of law. We can only hope that the days when men treated their wives like property are long gone. However, that is more of a case for getting rid of Section 497 completely.
The only restriction on treating a wife as an accomplice was the subject of the court challenge. Although it was claimed that this provision violated Article 14 of the Indian Constitution, the court determined that it was protected by Article 15(3), which makes particular provisions for women and children. This history of adultery shows that Section 497 expressly states that adultery law has always been favorable to husbands, allowing them to retain ownership of their wife’s sexual relationship.
As a result, this part has never been favorable to women’s interests. According to this rule, if a person has a sexual relationship with the wife of another man and her husband approves of it, adultery charges will not be brought against them. This is a blatant indication of how women are viewed as objects by their husbands.
At first glance, it would appear that this part is for the advantage of women, but upon closer inspection, it became clear that several clauses are based on the notion that women are little more than the property of men. According to Chief Justice Chandrachud, adultery is an offense that can only be committed by men and not by women. The underlying issue, namely the constitutional jurisprudential facets that affect the legality of section 497, is not addressed by this decision.
In another instance, V Revathi v. Union of India, the court ruled that neither the offending wife’s husband nor the offending husband’s wife may be prosecuted for being disloyal to her under this clause. Therefore, neither of the spouses can file a complaint against their unfaithful or disrespectful partner. As a result, there is no sex-based discrimination in this part.
ISSUES
- Whether section 497 of the Indian Penal Code is constitutionally valid or it is an excessive penal provision which needs to be decriminalized?
- Whether the sections 14, 15 and 21 (fundamental rights) of the Indian constitution are being violated by section 198(2) of the code of criminal procedure, 1973?
ARGUMENTS
When this appeal was scheduled for a preliminary hearing petitioner argued that On the grounds that it discriminates against men and contravenes Articles 14, 15, and 21 of the Indian Constitution, Section 497 of the IPC is prima facie unconstitutional. There is no clear reason to exempt one person from culpability when the sexual activity is done with both parties’ consent. According to Maneka Gandhi v. Union of India, (1978) 2 SCR 621, R.D. Shetty v. Airport Authority, (1979) 3 SCR 1014, and E.P. Royappa v. State of Tamil Nadu, 1974(4) SCC 3, the aforementioned discrimination is against the real extent and nature of Article 14. Article 15(3) does not permit the interpretation of Section 497 of the IPC as a helpful provision. It also holds the false premise that women are the property of the men, which implicitly discriminates against women. This is further supported by the fact that adultery ceases to be a crime that is penalized by law if it is committed with the woman’s husband’s agreement. This Honorable Court rejected institutionalized discrimination in Charu Khurana and Ors v. Union of India and Ors, 2015(1) SCC 192, because the same action would amount to institutionalized discrimination. In addition, consider Frontiero v. Richardson (1973) 411 US 677. Given that the “right to privacy” fundamentally encompasses sexual privacy. Articles 14, 15, and 21 of the Indian Constitution are also violated by Section 198 (2) of the CrPC, which disallows women from bringing adultery cases.
To all those allegations Respondent stated that Section 497 of the Indian Penal Code, 1860 supports, preserves, and protects the institution of marriage, hence the writ petition filed in accordance with Article 32 of the Indian Constitution is likely to be rejected right away. The court agreed with this viewpoint in the case of Sowmithri Vishnu v. Union of India.In effect, repealing Section 497 of the Indian Penal Code of 1860 and Section 198(2) of the Code of Criminal Procedure of 1973 will decriminalize adultery, undermining the sanctity of marriage and the social fabric in general. The subject of gender bias has previously been brought to the attention of the administration. In the case of W. Kalyanai v. State Tr. Insp. of Police & Anr., the honorable supreme court According to the Petitioner (2012)1SCC358,
JUDGEMENT
The Court declared Section 497 invalid because it violated Articles 14, 15, and 21 of the Constitution and declared Section 198(2) of the Criminal Procedure Code to be unconstitutional to the extent that it applies to Section 497 IPC. When rendering its decision, the Court took into account the following factors:
- Criminal law must adhere to the moral principles of the constitution. The concept of marriage that requires one partner to give up her sexual independence to the other is enforced by the legislation on adultery. Sec. 497 does not pass constitutional muster because it violates the rights to liberty, dignity, and equality guaranteed by the constitution.
- According to Andrew Simester and Andreas von Hirsch, a condition for criminalization is that the behavior constitutes a moral wrong. Although engaging in sexual infidelity may be ethically wrong, this may not be a sufficient reason to make it a crime. According to the Harm Principle, there must be three elements for criminalization: harm, wrongdoing, and public element. Before the State can define an improper act as a crime, certain factors must be established.
- The right to live in dignity includes the freedom from public criticism and punishment by the government, unless it is absolutely necessary. The State must take into account whether the civil remedy would accomplish the desired result and should assess the effects of such conduct on society in order to decide what conduct merits state action through criminal consequence.
- A crime must be committed against the entire society in order to qualify for criminal penalties; it cannot just be committed against one specific victim.
- A patriarchal monarchy over the daughter is not permissible, nor is a husband’s monarchy over the wife. Additionally, there cannot be a public display of male supremacy.
- A pre-constitutional statute known as Section 497 was passed in 1860. A pre-constitutional statute (such as Section 497) drafted by a foreign legislature would not be presumed to be constitutional. The clause would need to pass scrutiny on Part III of the Constitution’s anvil.
- The 156th report of the Law Commission of India proposed that a modification be made to include the idea of gender equality in marriage in relation to the crime of adultery. In addition, it was stated in the 42nd report that the adulterous woman should be treated equally by the law.
REFERENCES
This Article is written by Ayush Singh of Dr. Ram Manohar Lohia Avadh University, Intern at Legal Vidhiya.
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