.jpg)
Ashi Mangal,
Prestige Institute of Management and Research, Gwalior
Case Details: -
CASE NUMBER | WP (Crl.) 194/2017 |
PETITIONER | Joseph Shine |
ADVOCATES | Kaleeswaram Raj; M.S. Suvidutt (AOR) |
RESPONDENT | Union of India |
ADVOCATES | K.K. Venugopal; B.V. Balaram Das (AOR) |
INTERVENOR | Vimochana; Partners for Law in Development |
ADVOCATES | Meenakshi Arora; Jayna Kothari; Anindita Pujari (AOR); Liz Mathew (AOR) |
Facts of the case:-
1. In 2017, a man named Joseph Shine, who was an Indian citizen living in Italy, filed a case in public interest under Article 32 of the Indian Constitution challenging the constitutional validity of section 497 of IPC,1860 and Section 198(2) of CrPC.
2. According to the petition, Section 497 read with sec 198(2) of CrPC is violative of Article 14, 15 and 21.
3. Petitioner claimed that the said provision was arbitrary and also gender discriminatory.
4. The petitioner also argued that the provisions like adultery dishonors the dignity of the women
5. This case was first heard before a three-judge bench headed by the then Chief Justice Dipak Mishra. The three-judge bench referred the matter to a five-judge Constitution Bench.
6. The five-judge Bench started hearing the matter from August 1st 2018 onwards. On September 27th 2018, the Bench delivered its judgment.
Brief history of the case:-
Adultery is an offence which was punishable under Section 497 of Indian Penal Code, 1860. This provision has been challenged number of times in the court of law as being violative of right to equality under Article 14 and 15 of Constitution of India. The rationale behind this law as stated by the judges was that it is an affirmative action in favor of women as per Article 15(3). Another reason for not punishing women under this law was that they are treated as victim rather than offender. All the prior judgements of this case were in favor of the section stating that it is correct regardless of the fact of the section being arbitrary and discriminative.
Issues of the case:-
1. Whether Section 497 is an excessive penal provision which needs to be decriminalized?
2. Whether exemption granted to married women under Section 497 violates the right to equality under the Constitution?
3. Whether the provision for adultery encourages the stereotype of women being the property of men?
4. Whether Section 497 should be made gender neutral by including women as offenders?
5. Whether section 497 violative of Article 21?
Arguments by Petitioner
1) The Petitioner discussed several aspects of Section 497 that tended to violate fundamental rights.
2) Adultery is bad but making it a criminal offence is not justified. He submitted that adultery as a ground for divorce is completely different from criminalizing the offence.
3) It was taken note of that this provision of law provided punishment for man but no such action was provided for women.
4) The petitioner contended that provision is based on the notion that a woman is property of the husband. The provision says if the husband gives consent then adultery is not committed.
5) Under this section, the women whose husband was involved in the act was not given any right to file a complaint against him as there is no legal provision in this regard.
6) The Petitioner further contended that Section 497 of the IPC was violative of the fundamental right to privacy under Article 21.
Arguments by respondents
1) The Respondent argued that allowing individuals to have sexual relations outside marriage would inevitably destroy the institution of marriage and thus, the provision criminalizing adultery was essential for maintaining the sanctity of marriage.
2) It was also argued that Section 497 was valid and does not hamper right to equality as being a form of affirmative action in favor of women.
3) The Respondent claimed that the right provided under article 21 i.e. Right to life and personal liberty is not an absolute right but the one have certain reasonable restrictions.
Critical analysis of the case:-
The judgement given under the case has both negative as well as positive points. There have been number of cases taken into account while dealing with this case. Prior judgements on the same case were also taken into consideration and the judgements were overruled by making adultery decriminalized. Let us look at both negative as well as positive points:-
Positive:-
1. The connotation of the gender bias as being affirmative action in favor of woman was considered as meaningless.
2. The judges further said that if it was a crime both the man and woman should be liable of punishment.
3. Remark of it being within the sphere of manifest arbitration.
4. SC considered that this section treated women as property by giving husband the authority of consent.
Negative:-
1. The decision of judges of decriminalization of adultery is itself a question as some other alternative should have been used by them to solve this issue.
2. The reason of it being decriminalized in other countries could not be a valid ground of decriminalizing it in India.
3. The reason of this law being just a socio moral conduct is not acceptable as it is the purpose of all laws to make a just society.
Implementation of the case:-
The outcome of the case is that the adultery is no more punishable. Decriminalization has removed it as an offence and this section of adultery is no more implemented along with section 198(2) of CrPC. Although when it comes to mindset of people in India and the culture of India, one must not forget that in India marriage is a sacrament and any act directly affecting the marriage is related to people’s sentiments. The reason specified by judges was that many western countries have decriminalized adultery but this should not mean that India should also decriminalize it. India is a sovereign country and what is happening in the world should not affect its moral values. Although not punishable but still affect the lives of many people in the country.
Recommendations:-
1. Instead of decriminalizing the offence, the definition of adultery should have been changed to making it punishable for both male and female.
2. The scope of this section shall have been increased by giving the wife of accused husband the chance to file a case on her husband.
3. Legislature should have been directed to bring changes in the law.
4. Making adultery a ground for divorce or judicial separation only, is not sufficient in the country like India where the marriage is considered as sacrament.
5. Judiciary should have enlarged the scope of this section by giving it a wider interpretation.
Supportive Case Laws:-
1. Yusuf Abdul Aziz V. State of Bombay
2. Sowmithri Vishnu V. Union of India and anr.
3. V. Revathi V. Union of India and Others
4. W. Kalyani V. State through Inspector of police and another
REFERENCES
Comments