TITLE – Adultery law is defined in Section 497 of Indian penal code.

CASE NAME- – Joseph Shine v Union of India

CITATION- 2018 SC 1676

COURT- Supreme Court

BENCH- Dipak Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra

Decided on-  September 27, 2018

Case Laws-

Yusuf Abdul Aziz v. State of Bombay

Sowmithri Vishnu v. Union of India

V. Revathi v Union of India, 1988

Brief Facts and Procedural History-

Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal Code. The reason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands. Petitioner's close friend in Kerala committed suicide after a women co-worker made malicious rape charge on him. Further section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism. The traditional framework in which section 497 was drafted, is no longer applicable in modern society.

Contention of the Petitioner

•       The learned counsel for the petitioner submits that the provision by its very nature is arbitrary and invites the frown of Article 14 of the Constitution.

•       Section 497, in so far as it places a husband and wife on a different footing in a marriage perpetuates sex discrimination.

•       Section 497 is based on the patriarchal conception of the woman as property, entrenches gender stereotypes, and is consequently hit by Article 15.

•       Whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband

•       Section 497 is violative of Articles 14, 15 and 21.

•       The protection given to women under Section 497 not only highlights her lack of sexual autonomy, but also ignores the social repercussions of such an offence.

•       Section 479 I.P.C. and Section 198(2) of the Cr.P.C. as being unconstitutional

Contention of The Respondent

•       Adultery must be retained as a criminal offence in the I.P.C

•       Act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition

•       Adultery is not an act that merely affects just two people  it has an impact on the aggrieved spouse, children, as well as society.

•       The sanctity of family life, and the right to marriage are fundamental rights comprehended in the right to life under Article 21 outsider who violates shall be punished with criminal law.

Issue-

whether Section 497 contravened Articles 14 and 15 of the Constitution of India

whether

i.      the punishment for adultery violates Article 21?

ii.     the statutory provision suffers from manifest arbitrariness?

iii.   the legislature has, while ostensibly protecting the sanctity of marriage, invaded the dignity of women?

iv.    Section 497 violates Article 15(1) by enforcing gender stereotypes were neither addressed before this Court nor were they dealt with?

Ratio-

It was noted that Section 497 shields women from punishment for aiding and abetting. It stated that girls will benefit from this provision, which is protected by Article 15. (3). In order to protect women against patriarchy and free them from oppression, Article 15(3) was included. This text was written to help them find competent men. But Section 497 is based on patriarchy and paternalism rather than being a form of protective discrimination.

Under Article 21 of the constitution, sexual and personal privacy are respected in their dignity. A girl is entitled to privacy just like any other person. A private’s autonomy is their capacity to make important life decisions.

Held-

1.     Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

2.     Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

3.     The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.