Joseph Shine vs. UoI, 2018 — Adultery Case Sin is not equal to crime. Adultery is NOT a crime. Section 497 of IPC stands quashed and UNCONSTITUTIONALAdultery is violative of Article 14 and creates discrimination between man and woman.It is also violative ofArticle 21of a woman, whose husband his committing AdulteryAdultery can surely be a ground of divorce, but not a criminal offence. At max its a civil offence and moral crime.Adultery is something which is extremely private in the institution of Marriage and between two adults. They should be left to them to decide how to deal with this. State has no right to intervene. They can very well settle the issue — either by forgiving or by filing a divorce case — but it is upto them.Adultery is not a reason for failed marriage, rather it is a consequence of a failed marriage. Now as the Section 497 stands unconstitutional — The aggrieving wife can also file a civil complaint against her cuckolded husband.The woman with whom the man makes sexual relationship outside the marriage can also be prosecuted.Husband is not the owner of his wife. Wife is not husband’s chattel.Section 198(2) of CrPC also stands void— under which husband alone could complain against adultery.Man and Woman are equal and counterpart of each other — both completed one another. Its a horizontal relationship rather than a vertical relationship.Government’s PoV — Do not strike down the Section 497 — as this will destroy of institution of marriage. Society is still not ready and in the eye of society the very act of Adultery will always be criminal. Where the intervention of the state is allowed? (CJI Misra)Section 498-A (dowry harassment) of IPCDomestic Violence Act, 2005 Section 125 CrPC Section 306 (dowry death) or Section 494 (bigamy) of IPC In these provision the issue is not just personal — its a social wrongdoing.One cannot demand dowry and harass a girl or treat a woman with cruelty and even compel her to commit suicide.These activities are wrong in every way and has to be punished and hence there are laws. But adultery does not fall in this category.
Way forward —
We have to preserve the institution of Family — the most effective institution in the history of mankind.
Educate the youth about the institution of marriage and how to remain in a harmonious marriage.
Decriminalisation of adultery should not be looked as a license to infidelity in the marriage — it just struck down aVictorian Law which is inconsistent with the present reality, the act is still and will always be a social and moral sin. It can very well be the basis of a divorce, alimony and civil case.
Adultery means voluntary sexual intercourse of a married person other than with spouse.
In India the offence of adultery is punishable under Section 497 of theIndian Penal Code (IPC), 1860.
Section 497 penalizes sexual intercourse of a man with a married womanwithoutthe consent of her husband when such sexual intercourse does not amount to rape.
That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman.
Issues with section
It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it.
As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors i.e. one who instigates, encourages or assists another to commit an offence.
Hence, in case the offence is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer.
However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man, having sexual intercourse with otherunmarried womencannot prosecute either her husband or his adulteress.
Thus, the provision deems that husbands have a free licence under the law to have extra-marital relationships with unmarried women.
SC judgment in past
The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, up held the constitutionality of Section 497.
However, a three-judge bench had in 1985 dismissed argument on Section 497 was discriminatory.
Court held that it is the policy of the law to not to punish women for adultery and policies could not be questioned.
Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
The judgment said a wife could always initiate civil action against her unfaithful husband. The court agreed that “a man seducing the wife of another” was the most seen and felt evil in society.
In 1988, a two-judge Bench, in V. Revathi versus Union of India, denied gender discrimination in the fact that only the adulterer-man is punished and not the wife who consensually entered into the adulterous relationship.
Issuing notice, the court would examine two aspects of the penal provision.
Why does Section 497 treat the man as the adulterer and the married woman as a victim?
The offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?
The court said the dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”
Terming the provision “quite archaic,” the court observed in the order that when society progresses, rights are conformed and a new generation of thoughts should spring forth.
The court admitted a petition to drop adultery as a criminal offence from the statute book.
Its importance
The Constitution confers equal status to a man and a woman hence any law that violate such provision should be struck down.
The time has come when society has to realise that a woman is equal to her husband in every respect
