JOSEPH SHINE VS UNION OF INDIA
2018 SC 1676
Justice Dipak Mishra, Justice Indu malhotra, Justice R.F. Nariman, Justice D.Y. chandrachuad and justice A.M Khanwilker
Section 497 of Indian penal code (IPC), 1860 makes adultery a punishable offence against ‘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’
It goes on to state that, in such cases, the wife shall not be punishable as the abettor’. In simple words, the section implies only the man committing adultery is punishable and not the women.
Joseph shine, a non – resident keralite, filed a Public Litigation( PIL) under Article 32 of the constitution, challenging the validity of section 497 of IPC (adultery) read with section 198 (2) of CrPC (only husband shall be aggrieved of the punishment of adultery).
He argued that, this section favored women and discriminated men by holding them liable for the extra – marital relationships. It’s not always the men who have to be blamed for it. It also stated that, it also indirectly discriminates women by treating them as object.
ISSUES AND FACT OF LAW
Is section 497 violative of Article 14, 15 and 21 of the Indian constitution?
What is the position of section 198(2) of code of criminal procedure, 1973, is it valid or not ?
Whether section 497 is constitutionally valid and needs to be decriminalized?
A law which deprives the women to not to prosecute is not gender – neutral. Under section 497, the wife of adulterous male cannot prosecute her husband for marital infidelity. The provision ids therefore discriminatory against women and thus is violative of Article 14 of the constitution of India
The court also held that, section 497 is violative of article 15 as it violates the non –discriminatory principle enshrined under this provision of the constitution: discrimination based on paternalistic and patriarchal notions cannot claims the protection of article 15(3)
Section 198 (2) of code of criminal procedure, 1973, which contains the procedure for the prosecution shall be unconstitutional only to the extent that it is applicable to the offence of adultery section 497 of IPC, 1860.
Cretid: Shikha pandey