Joseph Shine v. Union of India

DATE OF JUDGMENT: 27/09/2018

COURT: Supreme Court of India

JUDGES: Deepak Misra, A.M. Khanwilkar, D.Y Chandrachud, Indu Malhotra, and  R.F. Nariman.

REFERENCE: WRIT PETITION (CRIMINAL) NO. 194 OF 2017

PARTIES

Petitioner: Joseph Shine

Respondent: Union of India

SUBJECT: The judgment revolves around the question of whether section 497 of IPC and section 198 of CrPC stands constitutionally valid?

FACTS: The petitioner filed a writ petition under Article 32 of the Constitution questioning the validity of section 497 IPC.

IMPORTANT PROVISIONS:

The Indian Constitution:

• Article 32: Remedies for enforcement of rights conferred by Part III

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
• The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III
  • Article 21: No person shall be denied of his life and personal liberty except according to the procedure established by law.
  • Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
  • Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
• Nothing in this article shall prevent the State from making any special provision for women and children.

The Indian Penal Code:

• Section 497: 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

The Code of Criminal Procedure:

• Section 198(1): No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.
• 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 com- mitted may, with the leave of the Court, make a complaint on his behalf.

ISSUES:

1. Whether sections 497 IPC and 198 CrPC are constitutionally valid?

ANALYSIS OF THE JUDGEMENT:

The petitioner contends that,

• Under the present scheme of section 497 IPC a woman can neither sue nor be sued. Only the aggrieved husband has an authority to file a complaint against the adulterer, but the aggrieved woman cannot file a complaint against her disloyal husband, which is manifestly arbitrary under Article 14 of the Constitution.
• If the act happens with the consent of the woman’s husband, then it will not amount to be an offence under section 497. Therefore, women are treated as an object in the hands of their husbands. This clearly violates her right to dignified life under Article 21.
• Both the adulterer and the adulterous has equal contribution in the commission of the offence, but only men are punished under section 497 and women are pardoned. This violates Article 14 and 15 which prohibits discrimination on the basis of sex.

The respondents contended that,

• The exclusion of women under section 497 from being punished is protected under Article 15(3) in the name of protective discrimination.
• Despite of declaring the entire provision as unconstitutional the Court may include women as an equal abettor in the offence.

Upon hearing the parties to the case, the Court held that, a prima facie sex based discrimination is made out under section 497 IPC therefore it is liable to be struck down as unconstitutional. Further, the Court clarified that, inclusion of woman as an equal abettor would become a policy decision which is beyond the powers of judiciary. However, section 198 CrPC will be unconstitutional to the extent it deals with section 497 IPC.