Decriminalisation Of Adultery And Impact On Family – Joseph Shine Judgment Analysis

Baglekar Akash Kumar[i]

INTRODUCTION

The months of September to October 2018 have seen the Indian judiciary playing its role of ‘judicial activist’ more vigorously for upholding basic rights of the citizens of India against the colonial laws and local customs which are unreasonable, unfair and unjustifiable. The Supreme Court had, (a) Stuck down Section 377 of the Indian Penal Code, 1860[1], (b) Partly upheld the Aadhar (Targeted Delivery of Financial and other subsidies, benefits and services) Act, 2016 and partly struck it down[2], (c) Allowed the entry of all women into Sabarimala temple[3], and (d) Permitted for live telecast of Supreme Court proceedings[4], and also (e) Held that Section 497 of the Indian Penal Code, 1860 is arbitrary, discriminatory and is a provision suited to ‘Rule of dictator’ and not ‘Rule of law’[5]. By these decisions, the Hon’ble Apex Court has impliedly held that ‘Due Process’ became the mandate of the Indian Constitution for the purpose of assuring dignified life to the individuals against the ‘whims and fancies’ of the Executive.

But, it is pertinent to mention that the Supreme Court didn’t exceed its activist hand to restrict candidates from disqualification, who face criminal charge against them on the ground that, ‘Constitution has drawn a ‘Lakshman Rekha’ through “separation of powers”[6] to not exceed into legislative function and held that it’s high time that legislators shall enact a law from not allowing themselves to sit in legislature if they face criminal charge’[7].

Among all these judgments, the sabarimala verdict received both the wrath of the public and publicity with the backing of politicians, as the modern judiciary aimed to change the conservative religious practice and is now pending for final disposal before a 9-Judge Constitutional bench, after reference was made to a larger bench of 7 or more in Kantaru Rajeevaru (Sabarimala Temple Review-5 J.) v. Indian Young Lawyers Assn.[8], case.

But, the people forgot the ‘decriminalisation of Section 497 of India Penal Code’ by the Supreme Court, which strikes at the root of marriage. It would be apt to note that, recently the Hon’ble Supreme Court dismissed the review petition filed against the main judgment which decriminalised S. 497 of IPC, by holding that, ‘(w)e do not find any ground, whatsoever to entertain the same (review petition)’.[9]

Through this article, the author aims to analyse, whether the ‘decriminalisation of Section 497’ was really violating fundamental rights or not?

KEYWORDS:- JUDICIAL ACTIVISM, ADULTERY, DUE PROCESS, RULE OF LAW, SEPARATION OF POWERS.

PREVIOUS JUDGMENTS OF INDIAN COURTS IN REGARD WITH ADULTERY

For the first time after Constitution came into force in 1950, section 497 of IPC was put to pass the litmus test of Article 14 & 15 of the Indian Constitution in Yusuf Abdul Aziz v. State of Bombay[10], wherein the appellant filed an appeal arguing that, ‘not making woman a party to crime of adultery is against the mandate of Article 14 & 15 of the Indian Constitution’ The Supreme Court rejected the appeal by holding that, ‘Article 14 is a general provision and must be read along with Article 15(3) which enables State to make laws for protection of women’.

Again, in Sowmithri Vishnu v. Union of India[11], the petitioner being an adulterous woman knocked the doors of the highest court to declare Section 497 of IPC as ultra vires to Constitution, to which the Court held that, ‘Section 497 of IPC is not violating Article 14 & 15 as such and moreover it is for the legislature to decide because legislature has declared it as an offence to protect the sanctity of matrimonial home’.

In 1988, V. Revathi, being deprived by Section 198(2) of Cr. PC filed a petition contending that arbitrariness is being followed in ‘Rule of Law’. The Court dismissed the petition on the ground that, ‘the community punishes the outsider who breaks into the matrimonial home and violates sanctity of matrimonial tie and also to restrict both husband and wife not to strike each other with the weapon of criminal law’[12].

ANALYSIS OF JOSEPH SHINE JUDGMENT

The Apex Court has held Section 497 of IPC as unconstitutional on the grounds that, ‘Section 497 denies substantive equality, violates non-discrimination principle, denial of the quintessential guarantees of dignity, liberty, privacy and sexual autonomy which flows out of bouquet of rights enshrined in the Indian constitution’.

SUBSTANTIVE EQUALITY

The Court has talked about substantive equality been taken away by the said provision, but equality would have remained if by amending the provision, based on either one of the two law commission of India reports which through its 42^nd report recommended that – ‘the exemption of the wife from punishment under section 497 should be removed, and she shall also be made liable for adultery’,[13] and again though its 156^th report, the law commission has recommended that by removing last clause to Section 497 of IPC, the legislature can provide the aggrieved spouse to file criminal case against his/her erring spouse[14].

DISCRIMINATION

The Court while decriminalizing adultery showed its concern that this provision is discriminatory as it allowed only aggrieved husband the chance to resort to judiciary and not others. The Court opinion on this ground were based on the facts that – Firstly, sexual intercourse between the married husband and other woman doesn’t attracts this penal law, and Secondly, the aggrieved wife is not provided judicial recourse against her adulterous husband. There is no objection that this provision is discriminatory on above grounds, but if one sees the origin of ‘adultery’ and why it was restricted only to woman, one could easily analyse the situation.

The term ‘adultery’ has evolved from Latin term ‘adulterium’ which means ‘to corrupt’[15]. And as per old definitions, an adulterer was a man who had illicit intercourse with a married or a betrothed woman, and such a woman was an adulteress[16], which meant that initially any person who had sexual intercourse out of marriage wedlock was deemed as adulterous. But, slowly when rulers with different intellects ruled, they restricted the offence of adultery to married woman and her paramour. In the ‘Code of Hammurabi’ (1780 B.C.E), both the unfaithful spouse and external seducer were punished with death[17], and in Roman the doctrine of ‘Lex lulia de adulteriis coercendis’ was followed where a father was allowed to kill his daughter for adulterous relation, and there was a common law presumption that ‘the adulterous woman would turn away inheritance from the blood of her husband to that of her paramour’[18]. Subsequently, as women was treated as chattel of her husband in England, adultery was treated as tort of “criminal conversion,” in which husband seeks damages for the act of sexual intercourse outside marriage, between the spouse and a third party. Hence, women were treated as a chattel of her husband over which no other person has got authority and now adultery in England is neither crime nor a tort, it is just a mere ground for divorce.

Coming to history of adultery in India, which was administered as per Hindu jurisprudence that regarded marriage as a sacrament and had the opinion that the sanctity of marriage between the two begins much before they have attained birth as human beings. Under Hindu scriptures adultery was not given a criminal sanction but it was considered as a moral sin and who get involved in adulterous relation has to face humiliation in public as well as ostracism from society.

The first draft of IPC didn’t have the approval of adultery as criminal offence, because Lord Macaulay deemed adultery as a private wrong to which parties can have recourse to civil courts and gave three reasons for his view that – ‘Firstly, Adultery as a crime in other countries has failed from preventing the rich husbands to take law into their hands, Secondly, Only few natives had recourse to court of law against adultery, and Thirdly, that the poor husbands just want their wives back’[19]. But Lord Macaulay suggestions were disapproved by the second law commissioners on the ground that, ‘where the law refuses to punish this(adulterous) offence, the injured party will do it for himself, he will break the public peace, and commit the greatest of all crimes, and he is rarely or never punishes’[20].

Hence, adultery was made a criminal offence in its present form (Before Supreme Court’s decision) taking into consideration condition of Indian women at that time.

From the above reverences to origin of adultery and it subsequently being restricted only to married woman and her paramour, one can see the firm roots of patriarchal ancient society. And this was also mentioned by Justice R.F. Nariman in this case holding that, ‘… What is therefore punished as adultery is not adultery per se but the proprietary interest of a married man in his wife’[21].

But decriminalisation of adultery by judiciary on the ground that it is discriminating between sexes and is frown of Article 15 has no Constitutional sanction because no doubt Article 142 mandates the Supreme court to do complete justice in matter of cases before it, but when the activist court is not fully equipped to cope with the intricacies of the legislative subject, where to remove this discrimination the legislature may enact a law by punishing both adulterous husband and wife having sexual intercourse out of their wedlock or it may make woman as abettor of crime, because it has got the mandate to enact law in criminal matters as per Entry – 1 & 2 of List – III of the Seventh Schedule of the Indian Constitution.

VIOLATION OF INGREDIENTS OF ARTICLE 21 OF THE INDIAN CONSTITUTION

The other grounds on which the court has decriminalized this colonial provision is that dignity, privacy, autonomy are intrinsic facets of individual liberty which are guaranteed by Article 21 of the Indian Constitution. But every fundamental right given to individual comes with ‘reasonable restriction’, where by allowing sexual autonomy to married woman to have sex with individual of her choice is against the concept of ‘sanctity of marriage’, and matter of disrespect by sharing of bed with someone after having marital relationship with one.

No doubt the term dignity defies description, but by not punishing the culprit having illicit relationship, it will affect the dignified life of a husband who will be blamed by the society as the one who has left his wife with other men.

Ever since privacy was made part of Article 21 of the Indian constitution, the Supreme Court is testing all matters coming before it on the touchstone of this principle and even in the adultery case has done the same, but this private right comes with a caveat that the act of an individual shall be just, fair and acceptable by the prudent man in the society.

If privacy, dignity, autonomy of an individual is unlimited then the Right to life of an individual shall include his Right to die at his choice and not only in case of terminal illness.

CONCLUSION

By decriminalisation of Section 497 of IPC, the Supreme court has exceeded its ‘Lakshman Rekha’ of ‘Separation of powers’, and has indeed not done the complete justice in matter of the case brought before it.

Justice Indu Malhotra in her separate, but concurring judgment observed that – ‘… in my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole’.[22] The question that needs to be addressed is whether the family members and children of either an adulterer or an adulteress, are not part of the society and public?

Hence, now its time for the legislature to remind itself of its ‘Constitutional Dharma’ and enact a legislation, whereby sexual intercourse by a married husband with his paramour or sexual intercourse by a married woman with her paramour shall be brought under the definition of adultery and it shall be made offence punishable in accordance with procedure established by law. Such a law becomes absolutely necessary to save the sanctity of the institution of marriage.

[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] K.S. Puttaswamy (Aadhar – 5j.) v. Union of India, (2019) 1 SCC 1.

[3] Indian Young Lawyers Association (Sabarimala Temple – 5j.) v. State of Kerala, (2019) 11 SCC 1.

[4] Swapnil Tripathi v. Supreme Court of India and Ors., (2018) 10 SCC 639.

[5] Joseph Shine v. Union of India, (2019) 3 SCC 39.

[6] See Baron De Montesquieu, The Spirit of Laws: Of the Constitution of England, (Vol. 1, Book XI, Chapter VI), 182, where he said that, ‘(T)here would be an end of every thing, were the same man, or the same body, whether of nobles or of the people to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals’.

[7] Public Interest Foundation v. Union of India, (2019) 3 SCC 224.

[8] (2020) 2 SCC 1.

[9] The Order of the court in, All Religious Affinity Movement v. Joseph Shine & Anr., Review Petition (Crl.) Diary No. 44581 of 2018 dated 28 May 2020, <https://main.sci.gov.in/supremecourt/2018/44581/44581_2018_1_1001_22220_Order_28-May-2020.pdf> accessed 25 June 2020.

[10] AIR 1954 SC 321.

[11] 1985 Supp SCC 1370.

[12] V. Revathi v. Union of India, (1988) 2 SCC 72.

[13] Law commission of India, Forty Second Report on Indian Penal Code, (June – 1971).

[14] Law Commission of India, One Fifty Sixth Report on Indian Penal Code – Vol. – II (August – 1997).

[15] The New international Webster’s comprehensive dictionary, (1996 Edn.) at page 21.

[16] ‘Adultery’, <https://www.biblestudytools.com/dictionary/adultery> accessed 22 June 2020.

[17] ‘Code of Hammurabi’, <http://www.newworldencyclopedia.org/entry/Code-of-Hammurabi#Adultery> accessed 22 June 2020.

[18] State v. Lash, [(16 N.J.L.380) (Sup. Ct. 1838)].

[19] Macaulay’s Draft Penal Code (1837), Note Q.

[20] Indian Law Commissioners, A Second Report On Penal Code (1838).

[21] See note 5, page 105, para 72.

[22] See note 5, page 190, para 281.

[i] The author is 4^th year L.L.B (5 YDC) Student at University College of Law, Osmania University, Hyderabad, and can be mailed at: akashbaglekar@gmail.com, and also on WhatsApp No.: 8297368722.