The instant case deals with the issue whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article15?

By: Shefali Jha, Semester III, Year II B.A.L.L.B (Hons.), New Law College, Pune.

Background:

The present writ petition was filed under Article 32 of the Constitution of India challenging the validity of Section 497 of the Indian Penal Code. A three-Judge Bench, before which the matter was listed, took note in the following cases already decided by the Apex Court

1. Yusuf Abdul Aziz v. State of Bombay2
2. Sowmithri Vishnu v. Union of India3 
3. Revathi v. Union of India and others4 
4. W Kalyani 
5. State through Inspector of Police and Another5 

The matter was referred to the Constitution Bench while observing that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved and that this provision creates a dent on the individual independent identity of a woman.

Facts:

• Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offense of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
• He argued that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects.
• “Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said.
• The law, Mr Shine said, also “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.

Issue:

1. Whether section 497 of the IPC (which makes adultery a criminal offense) is constitutionally valid?
2. Whether section 198(2) of the code of criminal procedure,1973 is violative of fundamental rights (14,15 and 21)?
3. Whether Section 497 is an excessive penal provision which needs to be decriminalized?

Rules:

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

(ii) 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 applies to the offense of Adultery under Section 497.

Arguments

Appellants: –

Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India.

• When sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, R.D. Shetty v. Airport Authority, (1979) 3 SCR 1014 and E.P Royappa V State of Tamil Nadu, 1974(4) SCC 3.
• Section 497 of the IPC cannot be interpreted as a beneficial provision under Article 15(3). It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offense punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors., 2015(1) SCC 192. (Also see Frontiero v Richardson, (1973) 411 US 677).
• Since sexual privacy is an integral part of the ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15, and 21 of the Constitution of India since it excludes women from prosecuting anyone engaging in adultery.

Respondent: –

• The writ petition under Article 32 of the constitution of India is liable to be dismissed at the very outset as section 497 of the Indian penal code,1860 supports, safeguards and protects the institution of marriage. In Sowmithri Vishnu vs Union of India, the court has supported this view.

Striking down Section 497 of the Indian penal code, 1860 and section 198(2) of the code of criminal procedure, 1973 would tantamount to decriminalizing the offense of adultery, thereby eroding the sanctity of marriage and the fabric of the society at large.

• The government is already seized of the issue relating to gender bias. The honorable supreme court held in W. Kalyani vs State Tr. Insp.Of Police & Anr The Petitioner (2012)1SCC358.

Decision:

A law which deprives women of the right to prosecute is not gender neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is, therefore, ex facie discriminatory against women, and violative of Article 14.

Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything unreasonable, discriminatory, and arbitrary.

Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favor of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offense of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be beneficial legislation covered by Article 15(3) of the Constitution. The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. Legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”. The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. The boundaries of personal liberty are indeed difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person does not warrant protection under Article 21.

In the context of Article 21, an invasion of privacy by the State must be justified based on a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra):

1. legality, which postulates the existence of law;
2. need, defined in terms of legitimate State interest, and
3. proportionality, which ensures a rational nexus between the object and the means adopted.

Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.

• To criminalize certain conduct is to declare that it is a public wrong which would justify public censure and warrant the use of criminal sanction against such harm and wrongdoing.
• The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the best interest of the individual.

Precedent:

1. Yusuf Abdul Aziz vs The State of Bombay (1954)

• Referring to the judgement of this case, the appellant was prosecuted under section 497 of the IPC. He contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.
• Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.

2. Sowmithri Vishnu vs Union of India & Anr (1985)

 In reference to this judgement, petition under Art. 32 of the Constitution, the petitioner challenges the validity of S. 497 of the Penal Code which defines the offense of ‘adultery’ and prescribes punishment for it.

• The petitioner contends that S. 497 of the Penal Code is violative of Art. 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men.
• The Supreme Court held that men were not allowed to prosecute their wives for the offense of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offense of adultery as a crime committed by a man against another man.
• The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.
• The argument was that if an unmarried man establishes an adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in sexual intercourse with a married man, she would not be held culpable for the offense of adultery, even though both disturb the sanctity of marriage.
• The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.

3. Revathi vs Union of India & Ors (1988)

• In this judgement, the Supreme Court decided that the offense of adultery as defined in Section 497 is considered by the legislature as an offense against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.
• The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court.
• Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offense committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.

Bench: Justice Deepak Mishra, Justice R.F Nariman, Justice D.Y Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra

Petitioner: Joseph Shine

Respondent: Union of India