In the Supreme Court of India
Criminal Original Jurisdiction
Writ petition (criminal) no. 194 of 2017
Union of India
Date of Judgement:
Decided on July 27th, 2018
Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman.
The term “Adultery” derived from a Latin word adulterium. Which means extramarital sexual intercourse with a person other than one’s own spouses. Adultery at present is no more a criminal offense after a landmark judgement of Supreme Court in the recent case of Joseph shine vs Union but still remains to be a wrong for which the only remedy available is divorce.
In October 2017 a writ petition was filed by a nonresident keralite challenging the constitutional validity of Section 497 of IPC and Section 198(2) of CRPC. This is a PIL (Public Interest Litigation) filed under Art.32 of the Indian Constitution.
Section 497 of IPC criminalized adultery by imposing culpability on a person who engages in sexual intercourse with a married woman and without her husband’s consent. Adultery was punishable with a maximum imprisonment of five years. Women including the consenting parties were exempted from prosecution. Further married women cannot bring forth a complaint under Section 497 of IPC even when her husband indulges in sexual intercourse with an unmarried woman.
The petitioner further contended that the provisions under Section 497 violate the fundamental rights under Art.14, 15 and 21 as enshrined in the Indian Constitution. When a sexual intercourse takes place with the consent of both the parties, there is no reason for excluding one from liability. It further discriminates women by holding an erroneous presumption that woman as property of men.
As sexual privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC also violates Article 14, 15 and 21 of Constitution of India since it excludes women from prosecuting anyone engaging in adultery.
However the respondents hold a different opinion that consensual sexual relationship outside marriage would breakdown the institution of marriage and it does not warrant protection under Art 21. Moreover right to privacy and personal liberty is not an absolute right but is subject to reasonable restrictions when legitimate public interest is the concern. Art 15(3) is a special provision for the benefit of women which enables providing provisions for protective discrimination.
In October 2017, a non-resident keralite named Joseph Shine filed a PIL (Public Interest Litigation) under Art.32 of the Indian Constitution. This particular petition challenged the constitutionality of the offence of adultery under section 497 of IPC and section 198(2) of CrPC.
Section 497 of IPC states that:
Sexual intercourse with a person whom he knows or has a reason to believe to be the wife of another man, without the consent of that man, such sexual intercourse not amounting to the offence of rape, is the offence of adultery, and the man who commits it shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. The wife in such cases shall not be punished as an abettor.
Section 198(2) of CrPC states that:
(2) 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 Penal code.
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time of commission of such an offence may, with the permission of the Court, make a complaint on his behalf.
The Petitioner contended that Section 497 of IPC and Section 198(2) of CrPC do violate the fundamental rights under Art.14, 15 and 21 of the Indian Constitution.
- Whether section 497 of IPC is unconstitutional being arbitrary and violative of fundamental rights?
- Whether Section 198(2) of CrPC unconstitutional and violative of the fundamental rights?
Arguments in favour of petitioners:
- The provisions of Section 497 of IPC and 198(2) of CrPC are not relevant to the present day scenario.
- Section 497 of IPC and section 198(2) of CrPC violate the fundamental right under Art.14 of the Indian constitution as it deprives a women’s right against her adulterous husband and offends the requirement of equal treatment and discriminates on the basis of marital status.
- Section 497 of IPC criminalizes adultery based on classification made on the baisis of sex and thus amounts to discrimination.
- Section 497 violates the fundamental right of the right to privacy under Art.21 of the Indian constitution.
- Section 497 criminalizes and punishes only man as an offender and exempts women from the same this is an unequal treatment whereby a woman is not punished for abetting such an act.
- A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’ under Art 15(3).
- Section 497 considers women to be a property of man
- Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman, a widow or a divorced woman.
Arguments in favour of respondents
- The freedom to have a consensual sexual relationship outside marital bond by a married person does not warrant protection under Art 21. Moreover the right to privacy and personal liberty is not an absolute one but is subject to reasonable restrictions when legitimate public interest is involved.
- Adultery is such an offence that outrages the morality of society and impacts its members so it has to be punished and criminalized.
- Section 497 was a special provision for the benefit of women; it is saved by Art 15(3) which enables the provision providing for protective discrimination.
- Family is the fundamental unit of any society, if the same is disturbed it will in turn impact stability and progress. The state therefore has a legitimate public interest in preserving and protecting the institution of marriage.
- Adultery has the effect of not only jeopardizing the marriage between the two consenting adults, but also affects the growth and moral development of children. Hence the State has a legitimate public interest in making it a criminal offence.
- Though adultery may be committed in private it is not a victim-less crime. It violates the sanctity of marriage, the right of a spouse to marital fidelity of their partner and breaks the fundamental unit of the family affecting the growth and wellbeing of children, the family and the society in at large.
- Therefore by preventing individuals from engaging in those conducts which are potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social wellbeing.
The Court struck down Section 497 as unconstitutional being violative of Art 14, 15 and 21 of the Indian constitution and held that Section 198(2) of CrPC shall be unconstitutional to the extent of its applicability to Sec 497 IPC.
In the case of Yusuf Abdul Aziz v. State of Bombay, the division bench of the Bombay High court held that section 497 of IPC does not violate Art.14,15 and 21 of the Indian constitution.
In the case of Sowmithri Vishnu v. Union of India and Anr. the court held that the scope of the offence of adultery, women should also be punished.
On the global scale, many countries have decriminalized adultery while it remains a core reason for divorce in certain cases. It is considered that section 497 of IPC violates the fundamental right of equality under Art.14 that is of the equitable procedure before the law further it impedes a women from initiating criminal proceedings added to this section 497 also violates the right to privacy of an individual under Art.21 of the Indian constitution.
The Judgement in the case of Joseph Shine v. Union of India is a good initiative and an ideal of transformative justice. The court has struck down section 497 of IPC and Section 198(2) of CrPC and has decriminalized adultery. The stated sections are discriminative as there is no provision or right of a woman to prosecute her husband who indulges in adultery and it does not punish a woman in adultery not even as an abettor.
This Judgement is criticized as it makes adultery non punishable and affects the social institutions of marriage and family.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje