JOSEPH SHINE VS UOI
CASE NO.WP(Cr.) 194/2017
DATE OF FILING10/10/2017
STATUS Disposed
PETITIONERS- Joseph Shine Partners for Law in Development
RESPONDENTS- Union of India
Relevant laws
Section 497 IPC - Adultary
Section 198(2) Crpc - Who can prosecute
Article 14- Equality before law
Article 15(3) – Special provision for women and children
Article 21- Right to life
ISSUES
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.
Background
when the Penal Code was enacted, the vast majority of the
population in this country, namely, Hindus, had no law of
divorce as marriage was considered to be a sacrament.
Equally, a Hindu man could marry any number of women
until 1955. It is, therefore, not far to see as to why a married
man having sexual intercourse with an unmarried woman
was not the subject matter of the offence.
DEEPAK MISHRA
He stated that Section 497 discriminates against women,
treating them with indignity and inequality.
He declared that legal subordination of one sex to another is
wrong in itself.
He further held Section 198(2) CrPC as unconstitutional.
Section 198(2) deals with the procedure for filing a complaint
in relation to adultery. He stated, ‘when the substantive
provision goes, the procedural provision has to pave the same
path’.
Speaking on gender equality, CJI Misra declared that the
Court could no longer allow women to be treated as the
property of men.
He emphasized that the Court has evolved a progressive
jurisprudence on constitutionally protected liberties
Accordingly, he held that Section 497 violates Article 14 of
the Constitution, stating it is manifestly arbitrary and
creates excessive and disproportionate distinctions based on
gender stereotypes.
He said the invidious distinctions created by Section 497
curtail the dignity of a woman and severely restrict her
autonomy.
He held that the State could not criminalize actions occurring
within the private realm of marriage.
He opined that adultery cannot be a crime and remain
consistent with principles of criminal liability established in
previous Supreme Court cases, such as Central
Inland Water Transportation and Common Cause.
He concluded that to criminalize adultery would be a
regressive step for the Supreme Court, which has
repeatedly spoken of the transformative nature of the
Constitution
He distinguished the offence under Section 497 IPC from the
one under Section 498A IPC.
He stated that Section 498A involves persons other than the
husband and thus State intervention in such matters did not
amount to an intrusion into the privacy of the matrimonial
sphere.
He held that, by contrast, criminalizing Section 497
IPC would be an extreme intrusion into privacy and to treat it
as a crime would be unwarranted in law.
JUSTICE NARIMAN
Adultery (sec 497) —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 497
it is clear that in order to constitute the offence of adultery,
the following must be established:
(i) Sexual intercourse between a married woman and a man
who is not her husband
;(ii) The man who has sexual intercourse with the married
woman must know or has reason to believe that she is the
wife of another man;
(iii) Such sexual intercourse must take place with her
consent, i.e., it must not amount to rape;
(iv) Sexual intercourse with the married woman must take
place without the consent or connivance of her husband.
with an unmarried woman or a widow, does not commit the
offence of adultery. Also, if a man has sexual intercourse with a
married woman with the consent or connivance of her husband,
he does not commit the offence of adultery. The consent of the
woman committing adultery is material only for showing that
the offence is not another offence, namely, rape.
The women are treated as the property of the husband
Section – 497 underlines that wives are properties of their
husbands. The very fact that this offence is only cognizable with
the consent of the husband emphasizes this point of veiw.
How section 14, 15 aand 21 are related
to the case :-
Article 14
That legislation can be struck down on the ground of
manifest arbitrariness is no longer open to any doubt, as has
been held by this Court in Shayara Bano v. Union of India and
Ors
Manifest arbitrariness- therefore, must be something done
by the legislature capriciously, irrationally and/or without
adequate determining principle. Also, when something is
done which is excessive and disproportionate, such
legislation would be manifestly arbitrary.
Article 15(3)
In Yusuf Abdul Aziz (supra), the difference in language
between Article 15(3) and Article 19(2)-(6) was not noticed.
The limited ratio of this judgment merely refers to the last
sentence in Section 497 which it upholds. Its ratio does not
extend to upholding the entirety of the provision or referring
to any of the arguments made before us for striking down
the provision as a whole.
Art. 15(3)does not merely deal with laws but deals generally
with any special provision for women and children, and
therefore it was not necessary in Art. 15(3) to mention both
existing laws and laws to be made in future. But the
exception made to Art. 15(1) by Art. 15(3) is an exception
which applies both to existing laws and to laws which the
State may make in future.
Article 21
Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an
intrinsic value, human dignity is an entitlement or a
constitutionally protected interest in itself. In its
instrumental facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool to achieve the
other. Article 21 was challenged as this law was voilative of
women sexual autonomy. Right to choice is a part of right to
live with dignity. And law of adultary was restricting this
women’s right on the option of husband’s consent for the
same.
Cases referred
Shayara Bano v. Union of India and Ors
Yufuf abdul aziz vs UOI
In V. Revathi v. Union of India and Ors
Sowmithri Vishnu v. Union of India and Anr.
JUDGEMENT
Five Judge Bench of the Supreme
Court unanimously struck down Section
497 of the Indian Penal Code as being
violative of Articles 14. 15 & 21 of the
Constitution.
Made by –
Anushka Agrawal 17bal075
Palak Gupta- 17bal095
