In the Supreme Court of India Criminal Original Jurisdiction Case No. Writ petition (criminal) no. 194 of 2017 Petitioner Joseph Shine Respondent Union of India Date of Judgement Decided on July 27th, 2018 Bench Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman.
This Writ Petition is filed challenging the constitutional validity of Section 497 of IPC and Section 198 (2) of CrPC. This is a Public Interest Litigation.
Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India. When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in 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.
Sec 497 of IPC cannot be interpreted as a beneficial provision under Art 15(3) and the exemption provided for women does not fall within the scope of the Article. It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offence punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors., 2015(1) SCC 192.
The said provision is also hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of India and Ors, (Writ Petition (Civil) No. 494 OF 2012), since sexual privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of Constitution of India since it excludes women from prosecuting anyone engaging in adultery.
However the respondents are of the view that consensual sexual relationship outside marriage would breakdown the institution of marriage and it does not warrant protection under Art 21. And moreover the right to privacy and personal liberty is not an absolute one and is subject to reasonable restrictions when legitimate public interest is involved. Art 15(3) saves the provision as a special provision for the benefit of women which is an enabling provision providing for protective discrimination.
This provision was challenged before this Hon’ble Court on three occasions, firstly in Yusuf Abdul Aziz v. State of Bombay and Another, AIR 1954 SC 321, secondly in Sowmithri Vishnu v. Union of India AIR 1985 SC 1618 and finally, in V. Revathi v. Union of India, (1988) 2 (SCC) 72.
In February 2016, the Hon’ble President of India had called for a thorough revision of the Indian Penal Code. Archaic provisions of the Code were sought to be removed and “The IPC has undergone very few changes in the last one hundred fifty-five years. Very few crimes have been added to the initial list of crimes and declared punishable. Even now, there are offences in the Code which were enacted by the British to meet their colonial needs. Yet, there are many new offences which have to be properly defined and incorporated in the Code.” In view of the same, it is submitted that Section 497 is a also an outdated provision, in addition to being illegal and violative of fundamental rights.
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Art 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Sec 497 of IPC read with Sec 198(2) of the CrPC.
Section 497 of the IPC reads as follows:
“497. Adultery.—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.”
Section 198 (2) of CrPC states as follows:
“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 care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Sec 497 IPC which was challenged, criminalized adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution.
Further a married woman could not bring forth a complaint under Sec 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Sec 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sec 497 and 498 IPC.
1. Whether Sec 497 of the Indian Penal Code, 1860 is unconstitutional being unjust, illegal, arbitrary and violative of fundamental rights.
2. Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal and violative of fundamental rights.
Arguments in favour of Petitioners
The arguments in favour of petitioners are as follows:
1. The historical background, in which Sec 497 was framed, is no longer relevant in contemporary society.
2. Sec 497 IPC and Sec 198 CrPC by its very nature is arbitrary and violates Art 14 of the constitution as it deprives women of the right to prosecute an adulterous husband. It offends the requirement of equal treatment and discriminates on the basis of marital status.
3. Section 497 criminalizes adultery based on a classification made on sex alone, such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory.
4. Under Sec 497, it is only the male- paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an ‘abettor”.
5. The right to privacy under Art 21 would include the right of two adults to enter into a sexual relationship outside marriage ( Shafin Jahan v. Ashokan K.M & Ors).
6. Art 15(3) cannot operate as a cover for exemption from an offence having penal consequences as a section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.
7. A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’ under Art 15(3). Further the consent of the woman is irrelevant to the offence.( Kalyani v. State of Tr. Inspector of Police and Another)
8. The Court observed that on reading of Sec 497, women are treated as subordinate to men in as much as it lays down that when there is connivance or consent of the man, there is no offence. It treats her as the property of man and totally subservient to the will of the master.
9. It would be unrealistic to proceed on the basis that even in a consensual relationship, a married women who knowingly and voluntarily enter into a sexual relationship with another married man, is a ‘victim’ and the male offender is the ‘seducer’.
10. Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman, a widow or a divorced woman.
11. Under Sec 497 if the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery.
12. Sub-section of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary.
13. Sec 497 fails to meet the three fold requirement for a restriction on Art 21 to be reasonable and valid ie, legality, need and proportionality. ( S Puttaswamy (Retd) & Anr v. U.O.I & Anr)
Arguments in favour of Respondents
The arguments in favour of the respondents are as follows:
- The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Art 21. And moreover the right to privacy and personal liberty is not an absolute one and it is subject to reasonable restrictions when legitimate public interest is involved.
- Since Sec 497 was a special provision for the benefit of women, it is saved by Art 15(3) which is an enabling provision providing for protective discrimination.
- An act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition.
- Family is the fundamental unit in society, if the same is disrupted it would impact stability and progress. The state therefore has a legitimate public interest in preserving 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 fibre 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 well being of the children, the family and the society in general.
- By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Sec 497 is protecting the institution of marriage, and promoting social well being.
The Court struck down Sec 497 as unconstitutional being violative of Art 14, 15 and 21 of the constitution and held that Sec 198(2) of CrPC shall be unconstitutional to the extend that it is applicable to Sec 497 IPC.
The decisions in Sowmithri Vishnu v. Union of India, V. Rewathi v.Union of India and W.Kalyani v. State.of Tr. Inspector of Police and Another (2012).
The Court took into consideration the following matters while passing the judgment.
- The autonomy of an individual to make his or her choices with respect to his/her sexuality is the most intimate choice of life and should be protected from public censure through criminal sanction.
- A wrong punishable with criminal sanctions must be a public wrong against the society as a whole and not merely an act committed against an individual victim.
- There cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over the wife. And there cannot be a community exposition of masculine dominance.
- Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution.
- The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires state interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose and should examine the impact of such conduct on the society.
- Andrew Simester and Andreas von Hirsch opine that a necessary pre requisite of criminalization is that the conduct amounts to a moral wrong. Though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same. The Harm Principle states three elements for criminalization namely, (i) harm (ii) wrong doing and (iii) public element. These elements are required to be proved before the State can classify a wrongful act as a criminal offence.
- Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Sec 497 does not pass constitutional muster.
- The Malimath Committee on Reforms of Criminal Justice System suggests that Section 497 should be suitably amended as “whoever has sexual intercourse with the spouse of any other person is guilty of adultery”.
- 156th report of the Law Commission of India, recommended to introduce an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery. And also I its 42nd report it suggested that the adulterous woman must be made equally liable for prosecution.
The judgment has put forward a good initiative as it struck down Sec 497 IPC and Sec 198(2) of CrPC as both the sections are based on discriminative classification against women. The provision is being discriminative in two ways, firstly it does not give woman the right to prosecute an adulterous husband and secondly it does not punish a woman in adultery not even as an ‘abettor’.
Moreover this judgment has also put into practice the idea of transformative justice.
However the judgment has lead to some kind of anomaly in the realm of adultery law as it makes the practice of adultery non punishable. It is criticized that the judgment takes away remedies available to any spouse when his or her partner indulges in adultery.
And the judgment is also silent as to its effect on the social institutions like marriage and also with regard to children born out of such relationship or involved in any other manner in similar situations.