Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceeding filed in the year 2013 under Section 497 of the Penal Code, 1860 against a person accused of adultery, in view of Supreme Court’s decision in Joseph Shine v. Union of India, (2019) 3 SCC 39.

Petitioner herein had filed a complaint case against the opposite party 2 alleging adultery with his wife, wherein the Chief Judicial Magistrate issued summons under Section 497 of the Penal Code, 1860. The said order of cognizance was challenged by opposite party 2 before the Sessions Judge by way of a criminal revision petition, and the order of cognizance was set aside. Aggrieved thereby, the instant application was filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of order dated 22-09-2014.

Counsel for the parties Mr Prabhu Narayan Sharma (for petitioner), Mr Md. Arif (for State) and Mr Saket Tiwary (for opposite party 2) submitted that the aforesaid issue was no more res integra for the reason that a Constitution Bench of the Hon’ble Supreme Court had held Section 497 IPC to be unconstitutional and has also declared Section 198 CrPC, which deals with the procedure for filing complaint in relation to an offence of adultery, as unconstitutional.

In view of the above, the Court held that cognizance against the opposite party 2 under Section 497 IPC could not be sustained. Thus, the entire criminal proceeding arising out of complaint case was quashed.[Devraj Dev v. State of Bihar, 2019 SCC OnLine Pat 431, Order dated 02-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.G. Giratkar, J. allowed revision petition and set aside appellant’s conviction under Section 497 IPC in light of Supreme Court decision in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

The applicant was alleged to have had sexual relations with the complainant’s wife. He was tried and convicted by the trial court for committing the offence of adultery under Section 497 IPC. His appeal thereagainst before the Additional Session Judge was dismissed. Hence, then he filed the present application for revision. It was prayed that in light of the decision in Joseph Shine where the Supreme Court had held Section 497 to be unconstitutional, the present application ought to be allowed.

The High Court relied on A.S. Gauraya v. S.N. Thakur, (1986) 2 SCC 709 wherein it was held that a law declared by Supreme Court applies even to pending proceedings with retrospective effect. Hence, the Court gave a retrospective effect to the law laid down in Joseph Shine to the proceeding pending before it. The Supreme Court in Joseph Shine held Section 497 IPC and Section 198 (2) CrPC to be violative of Articles 14, 15(1) and 21 and therefore unconstitutional. Therefore, in view of Joseph Shine, the conviction and punishment awarded to the applicant under Section 497 was quashed and set aside. [Rupesh v. Charandas, 2018 SCC OnLine Bom 6292, dated 14-12-2018]

Case BriefsSupreme Court

The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites a wrath of the Constitution.

                                                  – Dipak Misra, CJI and A.M. Khanwilkar ,J.

Supreme Court: The 5-Judge Constitution Bench has held section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak Misra delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions.

Before the Supreme court, in the writ petition, was the constitutional validity of Section 497 IPC which criminalizes adultery and Section 198 (2) CrPC which provides for offences against marriages. Petitioner submitted that the provision by its very nature is arbitrary and invited the frown of Article 14 of the constitution.

CJ Dipak Misra (for himself and A.M. Khanwilkar) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore we have no hesitation in holding that the same offends Article 21 of the constitution.

In the words of the Court, “treating adultery an offense, we are disposed to think, would tantamount o the State entering into real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently the provision is reflective of a tripartite labyrinth. A situation maybe conceived of where equality of status and the right to file a case maybe conferred on the wife. In either situation, the whole scenario is extremely private.”

R.F. Nariman, J. In his concurring opinion referred to various religious testaments and texts as also law and judgments of various foreign jurisdictions. He observed that the ostensible object of Section 497, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 IPC. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

Dr D.Y. Chandrachud, J. also referred to foreign judgments and distinguished authors. Section 497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the provision.

Indu Malhotra, J., the only woman on the Bench traced the origin of the word adultery from the French language; and discussed the doctrine of coverture, historical background of Section 497 and contemporary international jurisprudence. She observed that the Section is replete with anomalies and incongruities which renders it liable to be struck down as arbitrary and discriminatory.

Resultantly, Section 497 IPC and Section 198(2) CrPC were struck down. And the decisions in Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 and V. Revathi v. Union of India, (1988) 2 SCC 72 were overruled. Justice Malhotra, in her opinion, delivered, also held W. Kalyani v. State, (2012) 1 SCC 358 as overruled. The petition was accordingly disposed of. [Joseph Shine v. Union of India,(2019) 3 SCC 39, decided on 27-09-2018]

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Supreme Court: A five-Judge Constitution Bench consisting of CJ Dipak Misra, R.F Nariman, A.M Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra, JJ., pronounced the verdict for reconsideration of the judgments on the constitutional validity of Section 497 IPC that brings adultery into the box of criminalisation.

Legal subordination of one sex by another is wrong. Social progression of women and views of Justice Nariman in Triple Talaq case considered. Adultery can be grounds for dissolution of marriage: CJ Dipak Misra

CJ and Khanwilkar J.,  said that mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if evidence produced, it could be treated as an abetment to suicide

Section 497 of the Penal Code is unconstitutional: CJ Dipak Misra

R F Nariman J.: Concurred with the opinion of CJ Dipak Misra. Section 497 of IPC has lost its rationale. It is manifestly arbitrary.

Dr D.Y. Chandrachud, J. : Section 497 is based on a notion that a woman loses her agency upon marriage. Human sexuality is essential aspect of identity of an individual.

Dr D.Y. Chandrachud, J. Section 497 is based on gender stereotypes. Violative of Article 15. Also violative of Articles 14 and 21. Declared as unconstitutional.

Indu Malhotra J., : Section 497 IPC makes two classification. Who can prosecute and who can be prosecuted. Law that perpetuate stereotypes and institutionalises discrimination is unconstitutional. Section 497 IPC is violative of Articles 14, 15 and 21 of the Constitution and therefore struck down.

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution bench comprising of CJ Dipak Misra and RF Nariman, AM Khanwilkar, Dr DY Chandrachud and Indu Malhotra, JJ., commenced with the day 2 on the Constitutional validity of Section 497 IPC hearing in regard to “Adultery”.

Learned Counsel Kaleeswaram began with the arguments and placed his first argument that adultery is historically and politically significant, by further quoting Deborah that “Adultery is bad but imprisoning for the act of adultery is worse. Making adultery ground for divorce is right but for penalizing is wrong.”

Indu Malhotra J., If there is consent of the husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel.

Dr DY Chandrachud J., If a married man has sex with an unmarried woman it is not adultery but does it still not affect the sanctity of marriage.

RF Nariman J. to Kaleeswaram: Lord Macaulay did not want inclusion of this Section.

CJ Dipak Misra: In the institution of marriage which is built by two pillars. The parties are equally responsible for the commission of an Act.

Advocate Kaleeswaram argued that Section 497 IPC is indirectly discriminatory towards women as the wife of an adulterous man suffers and she can’t even file a complaint against it.

Dr DY Chandrachud J.,  Offence of Bigamy under Section 494 IPC is gender neutral and women can also be liable.

Further, Advocate Meenakshi Arora began with her arguments and stated that moral reprehensibility is not a ground to make adultery a criminal offence.  She in continuation to her arguments stated that “The jurisprudence behind adultery was no different. The object was not to protect bodily integrity of woman but to protect man’s control over wife’s sexuality.”

Dr DY Chandrachud J., “De-criminalising adultery is not licensing adultery.”

On the conclusion of Advocate Meenakshi Arora’s arguments, Advocate Sunil Fernandes began with his set of arguments and stated that “Union of India has submitted that Section 497 IPC has the object of preserving sanctity of marriage. But it does not penalise a husband for having sex with an unmarried woman or widow though that hits the sanctity of marriage.”

Dr DY Chandrachud stated that “The right to say ‘no’ should be there after marriage as well.”

The matter is put up for further hearing on 07-08-2018. [Joseph Shine v. Union of India, WP (Crl.) No. 194 of 2017, order dated 02-08-2018]

[Source: https://twitter.com/TheLeaflet_in]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Rohinton Fali Nariman, AM Khanwilkar, Dr DY Chandrachud and Indu Malhotra, JJ., commenced with the proceedings on reconsideration of the judgments on the Constitutional validity of Section 497 IPC that brings adultery into the box of criminalization.

The 3-Judge Bench of CJI Dipak Misra and AM Khanwilkar and Dr DY Chandrachud, JJ. had referred the said matter to the Constitution Bench in Joseph Shine v. Union of India, (2018) 2 SCC 189 on 05-01-2018. In the mentioned case, the bench was of the opinion that Section 497 IPC creates a dent on the individual identity of the woman as:

the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field.”

The Supreme Court has put up the matter for further hearing on 02-08-2018 after partly hearing the matter today. [Joseph Shine v. Union of India,  2018 SCC OnLine SC 783, order dated 01-08-2018]

Case BriefsSupreme Court

Supreme Court: Agreeing to hear the petition that sought for examining Section 497 of Penal Code, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to Central Government asking why a married woman, who is equally liable for the offence of adultery with a married man who is not her husband, be not punished along with the man.

Section 497 IPC, that deals with the offence of adultery, says that a man who has sexual intercourse with the wife of another man, without that man’s consent, will be punished for the offence of adultery. The said provision, however, expressly states that the woman will not be punished for the offence.

The Court noticed that the provision grants relief to the wife by treating her as a victim. Hence, when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. The Court said that the provision:

“seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband.”

Not only this, the Court also noticed that the provision creates a dent on the individual identity of woman as:

“the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field.”

Noticing that the provision, prima facie, appears to be quite archaic, the Court issued notice to Centre returnable within 4 weeks. [Joseph Shine v. Union of India, 2017 SCC OnLine SC 1447, order dated 08.12.2017]