Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has focused on the offence of adultery and has analyzed the landmark case of Joseph Shine v Union of India. He has gone onto discussing whether adultery violates articles 14 and 15 of the constitution and has concluded with critical analysis of whether adultery fulfils the constituents of being a criminal offence.
In the landmark judgement of Joseph Shine v Union of India adultery was struck down as unconstitutional. Due to this decision section 497 and section 198(2) were struck down from the Indian Penal Code and Criminal Procedure Code respectively. This being the landmark judgement, the practice of adultery has been questioned many a time in the past. Thus, before we can analyze the particular case passed by the apex court, we must study the history and case laws with regards to adultery.
Religious Views on Adultery
When we make an observation of the past, we realize that almost all ancient religions punished the practice of adultery and termed it as a criminal offence for which both the adulterer and the adulteress could be held liable under the law. In fact, under the Hammurabi’s code death by drowning was prescribed for committing the sin of adultery and the punishment extended both to the husband and wife.
If we refer to the famous king’s emperor August’s daughter committed the act of adultery and the king pronounced a punishment of banishment from the kingdom. In fact, under his rule when two people committed the sin of adultery, they were both sent to different islands and a part of their property was seized as punishment.
In Judaism, in the ten commandments that were addressed by god to Moss the seventh commandment stated that “Thou shalt not commit adultery”. It was said that the person who committed adultery would face the death penalty as the punishment.
In Christianity, the practice of adultery was condemned and the people who practiced adultery were looked down upon and were guilty of committing a sin. Jesus himself stated that a man incurs sin as soon as he looks at a woman with lustful intent.
In the widely popular religion of Hinduism, Manu Smriti one of the most important books on Hinduism stated that those who are addicted to intercourse with wives of other men must be punished to cause terror and later must also be banished for the acts committed. This was enumerated under chapter 4.134 and 8.352 of the Manu Smriti.
Lastly, Islam in An-Nur namely, verse 2, chapter 24 of the Qur’an says that when somebody commits the act of adultery, both the adulterer and the adulteress must be punished with hundred stripes for committing the act and no innocence must be shown on them.
Criminal Law in India
The first draft of the Indian Penal Code (IPC) which was released by the Law Commission of India in 1837 did not have adultery included as an offence. The framers of the penal code were of the view that criminal code should not intervene with private matters in a matrimonial home. But the majority members of the committee felt that adultery should be recorded as an offence to provide legal recourse to people. The debate between Lord Macaulay and the committee was recorded in “Note q” of “a penal code prepared by the Indian law commissioners”.
In June 1971 the 42nd report of the law commission of India analyzed various provisions of the Indian Penal Code and made recommendations for change in certain provisions. The commission especially recommended that an adulterous woman must be held equally responsible and should be held liable for prosecution. This recommendation was not given any effect. In March 2003, the Malimath committee sat to discuss reforms in the criminal justice system and made the following recommendation to the offence of adultery:
The committee, therefore, suggests that section 497 of the Indian Penal Code should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery….”. Though the recommendations were taken up to the law commission of India no action was taken on the following.
3-Judge Bench Verdict
A person named Joseph Shine, who was a non-resident Keralite filed public interest litigation (PIL) under article 32 of the constitution. The petition challenged the constitutionality of section 497 of the Indian Penal Code and section 198(2) of the criminal procedure code.
The two sections involved in the case state the following:
Section 497 of the Indian Penal Code
Whoever has sexual intercourse with a person 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, is guilty of the offence of adultery.
Section 198(2) of the Criminal Procedure Code
For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
The petition for striking the above mentioned two sections was first heard by a 3-judge bench of the apex court who held that:
- Section 497 of the Indian Penal Code granted relief to wife by treating her as a victim. When the offence is committed by both the parties, one is held liable whereas the other is held as a victim which is against the notion of equality.
- There is an absence of gender neutrality in the provisions involved. This can be represented by the fact that only one gender is treated as the victim or the fact that only the husband can be aggrieved by the offence committed.
- Under the criminal procedure code, the fulcrum of the offence is broken down when the consent of the husband is established. The fulcrum is broken because if a husband consents to the act then adultery isn’t established in that particular instance. This means that the decision is taken by the husband rather than the wife. This establishes subordination of a woman which goes against constitutional principles specifically article 14 and 21.
- Due to all these factors, we can establish that the provision is archaic and hence referred the judgement to a constitutional bench to evaluate the law.
Previous Indian Case Laws
Before the bench could analyze the provisions and pass a judgement it looked into the previous cases with regards to adultery in India:
Yusuf Abdul Aziz v State of Bombay
The appellant in the present case was being prosecuted under section 497 of the Indian Penal Code. The question that was before the court in the present case was whether section 497 was against articles 14 and 15 of the constitution and can the husband be held liable?
The court stated that per se the section wasn’t violative of the said articles and even if it was the husband would be convicted under the section because article 15 clause (3) gives right to the state to make special provisions for women and children.
Sowmithri Vishnu v Union of India and another
The petition was raised by article 32 of the Constitution challenging the validity of section 497 of the Indian Penal Code. The court in this case made the following observations:
- Under section 497 of the code, the husband has the power to prosecute the adulterer who committed the act with his wife. But the section does not provide for relief to a wife to prosecute the women who committed adultery with her husband.
- The section does not take into consideration a situation where the husband commits adultery with an unmarried woman. Hence the section also acts unequally because with a married woman the offence is established but an unmarried woman there is no offence of adultery committed.
- As observed from these two points we can clearly point out the flagrant instance of “gender discrimination” and “legislative despotism”. It clearly indicates the fact that a woman is like chattel (property) for a man.
- But the section somewhere also favours woman because the section says that the act can be only committed by a man. Thus, even though the woman may have been an abettor she is still held innocent and is represented as a victim.
- Though the court made the following observations it dismissed the petition due to facts being misrepresented.
V.Revathi v Union of India
This case took a different approach to the previous two cases by stating that in the Indian Penal Code the punishment for adultery is given to the person who breaks the matrimonial home of the husband and wife. Thus, the offence neither gives the husband or wife to prosecute each other under the garb of criminal law. Hence the court under this judgement held that the provision did not make any discrimination and hence isn’t violative of an individual’s fundamental rights.
W.Kalyani V State Thro Inspector of Police and another
The court in the present case was not evaluating the constitutionality of section 497 of the penal code. In light of the facts presented before the court, it made the following observations:
- The provision clearly states that if the husband under the code accepts the act then it does not classify as an offence. This represents the woman as the property of the husband and does not give her an identity of her own which is violative of our constitutional principles.
- The provision clearly states that only a man who has committed the offence can be proceeded against which is again violative of the principles of equality and leads to hostile discrimination of one gender.
- A wife cannot be proceeded against under this offence. Even if it is proved that the wife was an abettor still, she is treated as a victim in any circumstance. This is constitutionally wrong because primarily it treats woman as a victim showcasing that she is weak and did not want to indulge but was forced. Also, this is against gender neutrality because if the man is punished for committing the same act, a woman should also face the same wrath of the law.
CONSTITUTIONAL BENCH ANALYSIS
The petitioners in the present case stated that the provision in itself is against article 14 of the constitution. The two ways to establish that the provision does not meet standards of the article is manifest arbitrariness and fails to achieve rational nexus. Article 14 as a concept is made up of 2 principles:
- Equality before the law which was borrowed from the United Kingdom
- Equal protection of laws which was taken from the 14th amendment of the United States of America
In the case of S.G Jaisinghvi v Union of India the court made a statement which stated that “if action is found to be arbitrary and therefore unreasonable it would negate the equal protection of the law under article 14 and would be struck down.” The constitutional bench in the present case checked for manifest arbitrariness with the section to check whether it violated article 14 of the constitution:
- The provision mainly treated women as subordinate to men as it laid down that when a man consents to another man having sexual intercourse with his wife the act will not be considered to be an offence.
- This act establishes social dominance by one gender over the other. It treats the woman as the property of the husband. In a society where we aim for social equality the provision deviates by being beneficial for one side but injuring the other.
- The provision states that when a man commits the act of adultery with a married woman, he can be held liable by his wife. But when the same man commits the act of adultery with an unmarried woman, he can’t be held responsible. This is itself inequality as on some instance he can be held liable whereas in some other instance he is free and cannot be convicted.
- Coming to section 198(2) of the Criminal Procedure Code, only a man can be considered to be “aggrieved” under the garb of this section. The section does not include the wife or the couple’s relatives itself.
Thus, the court stated that the provision was manifestly arbitrary due to the contentions listed above and thus was against article 14 of the constitution. The court also stated that when the provision is viewed it protects the woman and at the same time fails to protect the woman. Hence there is no logicality that arises from the provision and thus it even fails to achieve its rational nexus.
The term “life” under article 21 includes a life of dignity and not just an animal life. Thus the court in the present case viewed the article for violating the dignity of a woman. There were various judgements that the bench took into consideration:
State of MP v Madanlal
The court in the present case stated that the dignity of a woman is part of her non-perishable and immortal self and no one should ever think of painting it in clay.
Pawan Kumar v State of Himachal
A woman has her own space as a man has. The right to live with dignity is guaranteed under article 21 of the constitution and cannot be violated by indulging in eve-teasing which was the main contention in this case. The court also made a key observation about the present conditions and stated that in a civilized society like our male chauvinism has no room. The court was indicating to the fact though in olden times male patriarchy was the system accepted and observed in modern times’ such behaviour has no place in our society.
R v R
This was one of the landmark judgements by the common law courts where they stated that in the 21st-century marriage is between equals and no longer one in which wife is subservient and thus treated as a chattel by the husband.
Voluntary health association of Punjab v Union of India
The court stated that women have to be regarded as equal partners in the lives of a man and it has to be borne in mind that they have an equal role to play in society. This decision shows the progressive mindset that entered the judiciary’s mind about 10 years ago where the role of a woman and her importance started increasing and the courts started giving recognition to women’s dignity by structuring laws and provisions that uplifted the status of a woman in society.
Charu Khurana and others v Union of India and others
The court in the present case in its own poetic way said that dignity is the quintessential quality of a personality. A human frame always desires to live in the mansion of dignity for it is a highly cherished value. The court wanted to convey that dignity as a concept is extremely important to every individual and taking it from one and retaining it with the other is against the provisions of law. Every individual in his own way must be given the dignity he/she deserves.
K.S Puttuswamy and another v Union of India and others
The landmark judgement on privacy also had an element of describing dignity in the modern society. The judgement said that dignity as a constitutional value finds expression in the preamble. Reflections of dignity are found in lamps of freedom (article 19) and right to life and liberty (article 21). This proves that the court even earlier had recognized that dignity for an individual is as important as breathing because without both these characteristics the individual loses the value of being a human.
National Legal Services Authority v Union of India and others
The judgement that recognized the rights of transgenders stated that the basic principle of the dignity and freedom of the individual is common to all nations. India being a democracy requires the people to respect and develop dignity amongst one and all. This judgement lays down the foundation for treating each and every human being with dignity. This is an important facet to give respect to all citizens of a free democracy.
Common Cause (A registered society) v Union of India and another
This judgement provided the most apt definition of human dignity. The judgement stated that human dignity is beyond definition. The judgement paid attention to the fact that dignity is not a stagnant concept. Though at a point of time dignity was merely accustomed to the male gender in the 21st century the definition must adapt to every gender as today all genders have a right to live independently with dignity.
Thus, the constitutional bench held that with regards to the earlier judgements the term dignity has been extensively defined and deliberated upon. When it is put into the current scenario the court observed that in the provision it has been stated that any act by a third party if accepted by the husband will not constitute the act of adultery. Hence the court stated that this provision made woman sound like a commodity and lowered her dignity in the eyes of society as she would always require her husband’s word to treat adultery as an offence or not. Hence the court came to the conclusion that the provision also violated article 21 of the constitution.
Hence the court in this judgement struck down adultery which is section 497 of Indian Penal Code and section 198(2) of the criminal procedure code. All the earlier decisions made in this regard were overruled.
The question to be answered by the author in this section is whether the offence of adultery really constitutes a criminal offence?
The concept of adultery has been time and again debated by the courts. Most of the jurists and lawyers have held that adultery is associated more towards the institution of marriage than of crime. Marriage in the modern context is treated as a social institution and the parliament has made all efforts to preserve the dignity of a woman in marriage by promoting laws and provisions which protect her. Section 498-A of the penal code and Domestic Violence Act are only some of the notable provisions under law to protect women.
Before we discuss whether adultery constitutes a criminal offence, we must look at the definition of crime as stated by Halsbury laws of England and Blackstone:
Halsbury laws, 4th Edn, voll.11, P.11
Crime is a wrong which affects the security or well-being of the public generally so that the public has an interest in its suppression.
A crime is an act committed in violation of public law.
Thus, we can clearly observe from the definitions above that crime leads to the injuring the well-being of the society and affects the public order that exists. When it comes to cruelty and harassment of course the law enters the private realm of a marriage but adultery as a criminal offence does not harm the public at large. Hence equalizing it with domestic violence and cruelty would be a wrong analogy to draw. As stated above the state is forced to enter in the cases of violence or harassment because the families and relatives of the individuals are also involved and affected. But in purely the law context in adultery only the two people in a relationship and the third party are present. Hence if the court tries to enter this realm also then there will be no privacy left which is a fundamental right to privacy.
The legislature’s rationale behind the offence is that, the state expects two parties to be cordial with each other and live together without any problem. When a problem arises because of adultery the party may file for divorce under a civil offence and get retribution also. But attaching a criminal notion to the offence would go against the rationale of the notion. As stated by Edmund Burke “a good legislation should be fit and equitable so that it can have right to command obedience.” In fact, in countries such as China, Japan, Australia, Brazil and most European countries adultery isn’t a crime anymore because of the reasons stated above.
From what we have seen above we can
conclude that adultery has all features of an offence but the features resemble
a civil and not criminal offence. Hence the court also has made adultery as a
ground for divorce.
 WP (Crl.) 194/2017
 20:14 King James version
 5:27-28 King James version
 A penal code prepared by the Indian law commissioners, (1838), notes on Lord Thomas Babington Macaulay, Note Q
 Available at http://lawcommissionofindia.nic.in/1-50/report42.pdf
 16.3.2 paragraph of the Malimath report
 AIR 1954 SC 321
 Nothing in this article shall prevent the state from making special provision for women and children
 AIR 1985 SC 1618
 (1988) 2 SCC 72
 (2012) 1 SCC 358
 (1967) 2 SCR 703
 Budhadev Karmaskar v State of West Bengal, Criminal Appeal No. 135 of 2010
 (SLP (Crl) No. 5273 of 2012)
 (SLP (Crl) No. 8998 of 2016)
  4 All ER 481 at p. 484
 (2013) 4 SCC 1
 (2015) 1 SCC 192
 (2017) 10 SCC 1
 (2014) 5 SCC 438
 (2018) 5 SCC 1
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