In India, the law on adultery has historically reflected patriarchal and male-centric values. It criminalizes a man for having sexual relations with a woman who is married to someone else, but if the husband consents or is complicit, it is not considered adultery. The law fails to offer any recourse to a woman if her husband commits adultery. Traditionally, adultery was deemed a sin for both men and women. However, Indian law treats women as victims of male seduction rather than as culpable. This legal approach is argued to violate constitutional principles such as equality, non-discrimination, and the right to dignity.
In many countries, including South Korea, South Africa, and Japan, have decriminalized adultery due to its gender-biased nature and infringement on privacy rights. Lord Macaulay, who developed the penal code, opposed criminalizing adultery and suggested it should be a civil matter. Recent judicial rulings reflect a broader trend of expanding fundamental rights in line with evolving societal values, leading to the historic decision to strike down this outdated law.
• Name of the case:
Joseph shine v Union of India
• Citation:
2018 SC 1676
• Judges:
Dipak Mishra, D.Y. Chandrachud, Indu Malhotra, R.F. Nariman, A.M. Khanwilkar
Let's know more about the case in more detail.
BACKGROUND OF THE CASE
1. Law in Question: Section 497 of the Indian Penal Code (IPC) criminalized adultery.
2. Target of the Law: The section specifically targeted men who engaged in sexual relations with a married woman without her husband's consent.
3. Criticism: The law was criticized for treating women as property of their husbands and reinforcing patriarchal norms.
4. Petitioner's Argument: Joseph Shine challenged the law, arguing that it was unconstitutional due to its discriminatory nature and its violation of fundamental rights.
5. Legal Focus: The case addressed issues of gender inequality, personal liberty, and privacy.
FACTS OF THE CASE
• Joseph Shine challenged the constitutionality of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure.
• His friend died by suicide after a woman falsely accused him of rape.
• Shine argued that these sections violate the principle of equality under Article 14 of the Indian Constitution.
• He claimed these laws are gender-biased and a dangerous tool.
• According to Section 497, only the husband of the woman involved in adultery can file a complaint, not the woman herself.
• If the woman's husband is indifferent to the adultery, no offense is recognized under these sections.
ISSUES RAISED IN THE CASE
1. Is section 479 of the Indian Penal Code, 1860 constitutionally valid?
2. Is the law gender biased, since the offence was only considered when committed by a man and not a woman?
3. Should the woman of the offender be given a right to file a complaint for the act committed by her husband against the sanctity of their marriage?
ARGUMENT OF PETITIONER
- The petitioner’s counsel argued that Section 497 of the Indian Penal Code, which criminalizes adultery, is outdated, originating from British colonial times and irrelevant today.
- It was asserted that Section 497 and Section 198(2) of the CrPC violate Article 14 of the Constitution, which guarantees equality before the law, by criminalizing adultery based solely on gender without rational justification.
- The counsel highlighted that Section 497 treats women as property of their husbands, as adultery is not considered a crime if the husband consents.
- It was contended that the provision is discriminatory under Article 15, as only men can prosecute for adultery, leaving women without recourse if their husbands commit adultery.
- The argument was made that Section 497 undermines women’s dignity and violates Article 21 by disregarding their sexual autonomy and self-determination.
- The counsel claimed that the act of sexual intercourse between consenting adults falls under the Right to Privacy, and enforcing such laws infringes upon Article 21.
- It was pointed out that the law treats women as objects, as the offence depends on the husband's consent, which is considered paternalistic and arbitrary.
- The counsel argued that the provisions breach Articles 14, 15, and 21 due to their discriminatory and outdated nature.
- The counsel further asserted that both parties involved in consensual sexual activity should be equally liable for punishment.
- It was argued that every individual has the right to engage in sexual intercourse outside marriage, regardless of marital status or gender.
ARGUMENT OF RESPONDENT
- The respondents' counsel argued that adultery disrupts family relationships and that deterrence is needed to protect marriage.
- They claimed that adultery impacts spouses, children, and society at large, and that such acts are morally unacceptable and should be penalized.
- They described adultery as a crime committed by an outsider with full knowledge, which undermines the sanctity of marriage.
- The counsel argued that the provision’s discrimination is justified under Article 15(3), allowing special laws for women and children.
- They contended that adultery offends societal morality and harms its members, hence it should be punished.
- They also argued that the Right to Privacy under Article 21 is not absolute and can be restricted in public interest, and does not extend to those committing adultery.
- The counsel maintained that Section 497 is valid as it acts as affirmative action favoring women and protects societal morality.
- They requested that if any part of Section 497 is found unconstitutional, it should be removed, but the provision should otherwise remain.
JUDGEMENT
In December 2017, Joseph Shine challenged the constitutionality of Section 497 of the Indian Penal Code. A three-judge bench, led by Chief Justice Dipak Mishra, referred the case to a five-judge Constitution Bench including Justices Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra.
The court noted that the law was based on outdated societal assumptions. It concluded that Section 497 was constitutionally invalid, as it undermined women's autonomy, dignity, and privacy. The law was seen as an infringement on women's right to life and personal liberty, reinforcing outdated gender biases and not respecting true equality. The court emphasized that sexual autonomy is a key aspect of personal liberty under Article 21 of the Indian Constitution and that mutual respect and equality between spouses are essential for upholding this autonomy.
The court ruled that adultery should no longer be a criminal offense, as it is a private matter rather than a societal crime. While it can be a civil wrong and grounds for divorce, criminalizing it invades the privacy of marriage.
Furthermore, the judgment made it clear that women should no longer be viewed as property of their husbands or fathers. They are to be recognized as equals in society with the right to voice their perspectives and be treated with dignity.
CONCLUSION
In the case of Joseph Shine v. Union of India (2018), the Supreme Court of India ruled that the criminalization of adultery under Section 497 of the Indian Penal Code was unconstitutional. The Court found that the provision was archaic and discriminatory, as it treated women as property and reinforced patriarchal norms. The judgment emphasized that personal relationships should be governed by principles of equality and individual freedom, rather than state intervention. Consequently, the Court decriminalized adultery, affirming the importance of individual autonomy and gender equality in personal matters.
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