CASE STUDY OF JOSEPH SHINE PDF

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PRESENTING YOU THE CASE STUDY OF JOSEPHI SHINE v. U.O.I...

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CASE ANALYSIS OF JOSEPHSHINE V. UNION OF INDIA (ADULTERY IS NO LONGER A CRIMINAL OFFENCE) BY ANUSHREE DUBEY1 PARTIES INVOLVED PETITIONER: JOSEPH SHINE RESPONDENT: UNION OF INDIA INTERVENOR: PARTNERS FOR LAW IN DEPARTMENT; VIMOCHAN

LAWYERS PETIONER: KALEESWARAM RAJ RESPONDENT: K.K. VENUGOPAL INTERVENOR: MEENAKSHI ARORA; JAYNA KOTHARI; SUNIL FERNANDES

CITATION: 2018 SC 1676

DECIDED ON: 27th SEPTEMBER 2018

JUDGES/QUORUM:

JUSTICE DEEPAK MISHRA JUSTICE R.F. NARIMAN JUSTICE A.M. KHANWILKAR JUSTICE D.Y. CHANDRACHUD

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LAW STUDENT, INVERTIS UNIVERSITY, BAREILLY (B.A.LL.B 4th YEAR)

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JUSTICE INDU MALHOTRA

INTRODUCTION It is rightly said by BENJAMIN CARSON “Marriage is a very sacred institution and should not be degraded by allowing every other type of relationship to be made equivalent to it” Father proposes and the son disposes. In these two years two big judgments were pronounced on privacy and adultery, and both the judgments involved Justice DY Chandrachud and his father YV Chandrachud, the former chief justice of India. In 1985 the then Chief Justice of India YV Chandrachud upheld the validity of section 497. But after 30 years his son Justice DY Chandrchud in August dumped on the judgment by saying “We must make our judgments relevant to the present day”. The Supreme Court has quashed the 158 year old provision on adultery which is defined under section 497 of the Indian Penal Code in its judgment in the case of Joseph Shine v. Union of India2. It is rightly said by GEORGE HEGEL “Marriage is unstable and contains the possibility of termination. That’s why the law should protect the right of morality against the caprice”. Although adultery has become legal but is still not ethical and is against the morality, as the marriage is basically based on the confidence of the partners in each other. Now adultery is only a civil wrong and the remedy for the act of adultery is only divorce.

BACKGROUND The question of adultery is not for the first time taking place in front of the judiciary. It has been discussed in two to three cases previously. The maiden case was of Yusuf Abdul Aziz v. State Of Bombay3in this case the husband was accused of adultery under section 497 of the Indian Penal Code. But when the complaint was filed, the husband went to the Bombay High Court to check the constitutional validity of the provisions under Article 228 of the constitution of India. This case was decided against the husband. The following observation was made by Justice Chagla about the assumption underlying section 497: “Mr. Peerbhoy is right when he says that the underlying the idea of section 497 that wives are the property of their husbands. The very fact that offence is only cognizable with the consent of the husband emphasizes that point of view. It may be argued that section 497 should not file a place in any

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2018 SC 1676 1954 SCR 930

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modern code of law. Days are gone when women are looked upon as property by their husbands.”4 A challenge was presented before the court which was only to the restriction on treating a wife as an abettor, but this section was violating article 14 of the constitution but the court held that this provision was safeguarded by Article 15(3) of the Constitution of India which provides for special provisions for women and children. This history of section 497 clarifies that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her as a sexual agency. This law basically provides that any person who is engaged in sexual relation with the wife of another man and the husband of that woman gives his consent for the same then such act won’t be charged for adultery. This clearly denotes that how women are considered as a toy in the hands of their husbands. Another case was of Swoithri Vishnu v. Union of India5in this case mainly the challenges were made on three grounds. 1 There is no right of a wife to present the woman with whom her husband has committed adultery. 2 The section does not give any right to prosecute her husband for the act of adultery. 3 There is no clarification of cases where the husband commits an adultery with an unmarried woman. Prima facie, it can be seen that this section was for the perquisite of the women but when we deeply analyse the section hen we will come to know that this provision is somewhere treating women as a chattel of men. In this case senior Justice Chandrachud stated that by definition, the offence of adultery can be committed only by men and not by women. But somewhere this case floundered to deal with the actual problem i.e. constitutional jurisprudence of section 497. Another case was of V Revathi v. Union of India6the court held that section 497 of Indian Penal Code does not allow either the husband of the offending wife to prosecute her nor wife of the offending husband for being disloyal to her. Therefore this section does not discriminate on account of sex. 4

yusuf Abdul Aziz v. State of Bombay,1954 SCR 930 1985 Supp SCC 137 6 (1988) 2 SCC 72 5

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JOSEPH SHINE’S CASE7 To shield the Indian men from being punished for extra marital relationships by vindictive women or their husband. Joseph Shine, the hotellier challenged the constitutionality of the section 497 of the Indian Penal Code. One of his close friend committed suicide after a women co-worker made malicious rape charge on him. Section 497 portrays the occurrence of sexuality unfairness and male patriotism. This orthodox framework is no longer applicable in today’s society.

ISSUES (1) Whether section 497 of Indian Penal Code is unconstitutional? (2) Whether exemption granted to married women under section 497 violates the right to equality under constitution? (3) Whether section 497 should be made gender neutral by including women as offenders? Certain problems were addressed: - Law of adultery provides that man to be punished in case of adultery but no action is suggested for the women. - Section 497 does not provide that a woman can file a complaint of adultery against her husband. - And if the husband gives the consent for such an act then such act is no more considered as a crime - Section 198(2) of Criminal Procedure Code allows a husband to bring charges against adultery not the wife.

JUDGEMENT 7

2018 SC 1676

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The five judges bench held that: - Law of adultery i.e. Section 497 is anachronistic and is unconstitutional. This section denies the substantive equality and it reinforces that women are unequal participants in a marriage, and she is incapable of freely consenting to a sexual act in legal order which regards them as the sexual property of their spouse that is why it is violating Article 14, 15 and 21. - Section 497 is no longer a criminal offence still it is a ground of divorce and maintenance. Crime does not affect an individual, it affects the whole society, adultery is a personal issue, if adultery is treated as a crime then it would be equivalent to the state entering into a real equivalent to the state entering into a real private realm. Adultery is not fitted in the concept of the crime as it extends into the private space of marriage. The husband is not the master of his wife. - Section 497 shows arbitrariness. In the judgment it was illustrated that a consent given by the husband does not preserve the sanctity of the marriage. Justice Indu Melhotra said “Women are no longer invisible to law and they no longer live in the shadows of their husband”.

ANALYSIS In this case the Hon’ble Supreme Court has struck down law of adultery. It is notable that when Indian Penal Code was drafted originally then it was silent about the offence of adultery. At first Macaulay was not of the opinion to include adultery as a crime. He advised to treat adultery as a civil wrong. Thus framers of the code did not inserted adultery as a crime, but it was done after the recommendation of the second law commission. It is also important to note that a bill in 1972 as the Indian Penal Code (Amendment) Bill, 1972 suggested that special privileges granted to women under section 497 of Indian Penal Code be done away with but it was not considered. Section 497 was violating many provisions of our grundnorm but decriminalising adultery was not the solution it will only increase the cases of divorce, the sanctity of marriage will be in question. It is pertinent to mention here the recommendation of the Law Commission of India in its 42nd report regarding the provision of adultery in I.P.C. The recommendation 22 was as follows:—

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20.18. After much discussion and careful consideration, we are of the opinion that the exemption of the wife from punishment under S. 497 should be removed, that the maximum punishment of five years imprisonment prescribed in the section is unreal and not allied for in any circumstances and should be reduced to two years, and that with these modifications, the offence of adultery should remain in the Penal Code. It is accordingly recommended that the section may be revised, as follows: 497. Adultery. — If a man has sexual intercourse with a woman 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, the man and woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description of a term which may extend to two years, or with fine, or with both.8 Thus the proposal of Law Commission is to bring the section of the line of gender neutrality without discriminating the two different sexes and making them criminally liable in equal degree. However, the Law Commission had proposed the lesser degree of punishment. This recommendation by the Law Commission was to be considered as this provision was gender neutral and unbiased. The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under Section 306 relating to abetment of suicide will take place9 It would have been balanced if the section was amended instead of being struck down. The exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of it10 If something is morally wrong, it cannot be a legal right.

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Recommendation of V.S. Committee Chaired by Justice V.S. Mallimath; “The Report of the Committee On Criminal Justice Reforms”; 2002; Para 117. The committee has however, recommended for modification of S. 497 of IPC to bring it on the line of gender neutrality 9 Aabha Singh, Decriminalisation of Adultery, Outlook (SEPTEMBER 27, 2018), https://www.outlookindia.com/website/story/decriminalisation-of-adultery-asetback-to-the-institution-of-marriage-in-india/317282 10 Sabarish Suresh, The truth behind cheating – Revisiting adultery judgments in India, The Quint ( JULY 10, 2018)

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CONCLUSION It is rightly said by CRYSTAL MC DOWELL, “The sanctity of the marital covenant means that the husband and wife have separated themselves from all others to remainfaithful until death”. The law of adultery has been the war of words from many years, earlier the adultery was a crime and was made punishable because it was affecting the sanctity of the marriage. India is known for its morals, ethics and its vast culture and in India marriage has been recognised as a purest form relationship, these things can’t be denied. Hon’ble Supreme Court has decriminalised adultery it can somewhere put a question mark on this sacred relation. Simultaneously it is to be noted that it is still a ground of divorce an maintenance, and it can also not be repudiated that right to privacy is also a fundamental right and Hon’ble SupremeCourt has somewhere tried to protect the privacy of an individual since adultery is a private matter of an individual. And one can engage in the legal consequences of adultery, although not as a criminal offence but the remedy can be easily found in the civil law. Section 498A of Indian Penal Code which can cover this as a mental trauma caused to the person because of his or her adulterous act.

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