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AN ASSIGNMENT OF INDIAN PENAL CODE-II
FOR PARTIAL FULFILMENT OF EVEN SEMESTER
INTERNAL EVALUATION
TITLE OF THE PAPER
“Law Related to Adultery: A Reason or The Symptom of Broken
Marriage”
Under the Supervision of Submitted By
Avishek Raj Akanksha
Asst. Professor 18FLICDDN
ICFAI Law School BA LLB (HONS.)
The ICFAI University, Dehradun 2
nd
Year, Sec.: C
ICFAI Law School
The ICFAI University, Dehradun
TABLE OF CONTENTS-
1) Introduction
2) Current Status of Adultery Law and facts related to the Case
3) Ground on which Adultery Law was challenged
4) Timeline of Adultery Case in Court
5) The Concept of Article 15
6) Divorce through Adultery
7) Conclusion
8) Bibliophile
CURRENT STATUS OF ADULTERY LAW
AND FACTS RELATED TO THE CASE:
Joseph Shine V. Union of India
The Supreme Court has declared that section 497 is unconstitutional. Adultery is not a crime. This judgment has overturned the previous rulings by the Supreme Court on section 497. Adultery is no longer a crime. The judgment by a five-judge Supreme Court bench headed by Chief Justice Deepak Mishra has overturned the previous three rulings on the matter. Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter's wife. The law states that only a man can file a case of adultery and that too against a man with whom his wife has allegedly slept with. So, in essence, a woman can neither file a case of adultery, nor can she be prosecuted on the ground of adultery. This cuts gender discrimination both ways, that is, it discriminates against men and women. It discriminates against men because while they can be prosecuted for the crime of adultery if they sleep with a married woman, a woman cannot be prosecuted for sleeping with a married man. This law on adultery discriminates against women, too, because while a married man can file a case of adultery, a married woman cannot file a case against the husband or against the woman with whom her husband slept. The law had come under sharp criticism for treating women as possession of men. An Italy- based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory.
GROUNDS ON WHICH ADULTERY LAW
WAS CHALLENGED:
These are some main grounds to revisit the law as follows:
- Law discriminates against men.
- When sexual intercourse takes place with the consent of both parties, there is no good reason to exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and grants immunity to wife by treating her as a victim according to prevalent social norms. Violation of Article 14, 15 and 21.
- Arbitrary distinction is made between man and woman without any reasonable grounds.
- Not in consonance with changing Social Conditions.
- Today both women and men move shoulder to shoulder with each other. So any biasness in the law towards any gender is like not evolving the law with the ever changing society.
- Promotes subordination of women.
- The section encourages the notion of treating wife as a commodity under the subjugation of husband. It harms the individual independent identity of women whose prosecution depends on husband’s consent.
History
Previous citations that challenged the validity of section 497 of IPC
1) Yusuf Aziz versus State of Bombay
- The adultery law first came under challenge in 1951 in the Yusuf Aziz versus State of Bombay case. Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.
- The dominant argument in the court hearing was that Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship.
- 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) V Revathy versus Union of India
- In the next big case- V Revathy versus Union of India of 1988--on adultery law, the Supreme Court held that not including women in prosecution of adultery cases promoted "social good". It offered the couple a chance to "make up" and keep the sanctity of marriage intact.
- The Supreme Court observed that adultery law was a "shield rather than a sword". The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.
- Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law.
- The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral.
TIMELINE OF ADULTERY CASE IN
COURT:
The Supreme Court heard the matter on adultery for six days and reserved the judgment on August 8, 2018.
- October 10, 2017: Joseph Shine, petitioner, filed a plea in Supreme Court challenging the constitutional validity. It stated Section 497 as "prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution".
- December 8, 2017:The top court agrees to examine the constitutionality of the law.
- January 5, 2018:The apex court refers the matter to a five-judge Constitution bench
- July 11, 2018:Centre informs the court that striking the law down will destroy the institution of marriage.
- August1, 2018:The Constitution bench commence the hearing the final arguments.
- August 2, 2018:The Supreme Court says adultery as a penal provision is violativeof the right of equality under the Constitution.
- August 8, 2018:Centre favors the retention of penal law on adultery, says it is a public wrong which causes mental and physical injury to the spouse, children and the family. The apex court reserves the judgment.
- September 27, 2018: The apex court strikes down the penal provision and terms Section 497 as unconstitutional.
Articles Involved
Article 14 (Equality before law)
- Article 14 says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Article 14 is available to any person including legal person viz. statutory corporation, companies, etc.
THE CONCEPT OF ARTICLE 15:
The concept and purpose of this Article is to prevent the government from making discrimination on the basis of religion, race, caste, sex, or birth place. One of the clauses clearly states that no citizen shall be subject to “any disability, liability, restriction or condition” on the basis of religion, race, caste, sex, and place of birth. Their access to public properties like shops, restaurants and entertainment hubs should not be restricted on grounds of religion or caste. The Article also guarantees special provisions for women, children and socially disadvantaged classes.
Benefits of Article 15
The clause (3) of the Article empowers the government to make special laws/ provisions for women and children. It is considered one of the earliest legislation that emphasized on gender equality and women empowerment. In Article 15 (4) and (5), the Constitution gives government the power to make special provisions “for the advancement of any socially and educationally backward classes of citizens.” This holds true for the scheduled castes and the scheduled tribes as well. Such ‘protective discrimination’ is a step taken to eliminate inequalities existing in society. Moreover, the reservation of OBCs under Article 15 was aimed at providing equal opportunities in education and raising social and economic levels of those who are lagging behind.
Amendments to Article 15
This anti-discrimination law made its first exception by including a Clause (4) during the 1st amendment in 1951. With this amendment, the article made way for reservation for SCs and STs and other backward classes to benefit them academically, socially and economically. It’s important to note that Clause (5) of Article 15 was originally not a part of the Constitution. It was introduced during the Ninety-Third Amendment Act in 2005. There was widespread protest
over the central government’s decision to include this clause. Even stronger opposition came from the non-OBC students, which led to the emergence of several writ petitions challenging the Amendment.
Sections Covered Under This Case
Section 198(2) of code of criminal procedure, 1973.(prosecution of offences against marriage) According to Section 198(2) of the Code of Criminal Procedure, no person other than the husband of the woman shall be deemed to be aggrieved by any offence of adultery punishable under Section 497 and any offence enticing, etc., a married woman punishable under Section 498 of the Indian Penal* Code. However, 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 behalf of the husband. Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband wsa found to be in an adulterous relationship. Section 198 of the Code of Criminal Procedure, 1973, says only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her. Section 13(1) of the Hindu marriage act, 1956 (adultery as the ground of divorce).
CONCLUSION:
As per Hon'ble former CJI Mishra: Referring to other countries like China, South Korea, Japan where adultery is no longer a crime, CJI Mishra said, "Adultery can be ground for any civil wrong. There can't be any social license that destroys the matrimonial home, but adultery should not be a criminal offence." He also declared Adultery unconstitutional. Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage. Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abatement to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step. And according to him “Adultery is a symptom of broken marriage and not the reason of broken marriage”.
BIBLIOPHILE:
- http://www.legalserviceindia.com/
- https://www.teeslaw.com/
- https://economictimes.indiatimes.com/
- https://www.researchgate.net/
- https://www.scconline.com/
