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Joseph Shine vs Union of India case, Decriminalisation of Adultery

Joseph Shine vs Union of India case, Decriminalisation of Adultery

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  • GS 2 || Polity || Constitutional Framework || Fundamental Rights

Introduction

  • Adultery in India was based on the notion of patriarchy and male chauvinism. This offence makes a man criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband consents or connives to such an act it will no longer be adultery.
  • There was no right to a woman in case her husband commits adultery. In ancient history, adultery was considered to be a sinful act either done by a married man or woman.

What is adultery?

  • The act of adultery is voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.

Adultery as an Criminal offense and Punishable under law

  • Adultery is punishable under Section 497 of the IPC.
    • Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe is the wife of another man without the consent or connivance of that man, such sexual intercourse not amounting to rape, is guilty 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 a case, the wife is not liable as an abettor.
    • Section 198(2) of the CrPC
    • No one other than the woman’s husband shall be deemed to be aggrieved by any offence punishable under sections 497 or 498 of the said Code-Provided, however, that in the absence of the husband, some person who had the care of the woman on his behalf at the time such offence was committed may, with the Court’s permission, make a complaint on his behalf.

Recommendations

  • 42nd report of the Law Commission of India
  • The 42nd report of the Law Commission of India Report in 1971  and the Malimath Committee on Criminal Law Reforms of 2003 recommended an amendment to the adultery law. Both reports suggested that  Section 497 of the IPC should be made gender-neutral.
  • 152nd report of the Law Commission of India
  • In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
  • Malimath Committee 2003
  • In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’. The same is pending for consideration.
  • 2008
  • A five-judge Review Bench led by Chief Justice of India upheld the September 2018 verdict of the Constitution Bench which had struck adultery out of the penal statute book.

Decriminalization of Adultery in India

  • A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Articles 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the provision for adultery to be arbitrary and discriminatory based on gender.
  • In India, adultery was a ground for divorce under Section 13 (1) of the Hindu Marriage Act, 1956.

Concerns Raised by the court

  • One big concern regarding this law is that it does not appear to be gender-neutral.
  • Section 497 does not enable a woman to file a complaint against her husband when he has had sexual intercourse with another woman.
  • Section 497 treats a married woman as her husband’s “chattel”. The provision is a reflection of the social dominance of men prevalent 150 years ago.

Court’s Observations

  • The original decision was issued by a Constitution Bench led by then-chief justice Dipak Misra, who determined that Section 497 (adultery) of the Indian Penal Code cannot “command” married couples to remain loyal to each other for fear of penal punishment.
  • No reason to claim that adultery would lead to chaos in sexual morality
  • The court reasoned that there was no evidence to support claims that legalising adultery would lead to “chaos in sexual morality” or an increase in divorce.
  • Violation of various Fundamental rights of an Individual
  • Section 497 appears to be out of date, according to the judges. Indeed, it appears to be a violation of Articles 14 and 21.
  • Adultery can give rise to civil issues, such as the dissolution of a marriage, but it cannot give rise to a criminal offence.
  • The Bench also ruled that Section 198 (2) of the CrPC, which gave the cuckolded husband the sole authority to prosecute his wife’s lover, was manifestly arbitrary.

Adultery is no longer be a criminal offence

  • A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

In other countries

  • This law is violative of our constitutional principles i.e. equality, non-discrimination, right to live with dignity and so on. Adultery has been struck down as an offence in as many as 60 countries including South Korea, South Africa, Uganda, Japan etc., for being gender discriminative and violating the right to privacy.

Cons

  • It will encourage extramarital affairs, which will lead to family conflicts.
  • It may increase the number of divorce cases.
  • It may have a negative impact on children if the wife and husband divorce.
  • Some experts believe that as it promotes westernisation, it will destroy the ancient institution of marriage and culture in India.

Significance of the judgement

  • No filing of a complaint but an end to Victorian-era morality.
  • By allowing a woman to act against her husband’s lover, the Court did not equalise the right to file a criminal complaint.
  • Instead, it preferred to put an end to Victorian-era morality.
  • Rights based order
  • It is a significant step toward rights-based social relations rather than a state-imposed moral order.

Way forward

  • The decriminalisation of adultery comes soon after the Supreme Court decides to read down Section 377 of the IPC to decriminalise homosexuality, allowing people of all gender identities to be free of fear of the law. This is a positive and progressive development.
  • However, it is concerning that the task of updating the statute books is being left to the judiciary, with no proactive role for Parliament in amending regressive laws.
  • The provisions such as Section 497 and Section 377 should have been addressed by the Parliament in its legislative capacity through debates and discussions.

Conclusion                

  • This courtsdecision decriminalises adultery and makes it only a cause of civil wrongs. Criminalizing both men and women, as suggested by Law Commission reports, would not have served the purpose because adultery is a very private affair involving the matrimonial realm. The Legislature should have taken this step a long time ago, but our judiciary has been very efficient in filling gaps and removing redundant laws as societal notions change.

Mains model question

  • Discuss the Supreme Court’s decision on the Adultery Law is a victory for gender equality. Also discuss the effects and Consequences of Decriminalizing Adultery in India.

References