January 19, 2018
In the case Joseph Shine v. Union of India taken up by the Supreme Court earlier this month, the Petitioner had challenged the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code.
Section 497 of the Indian Penal Code provides for the offence of adultery and renders criminal liability on husband who has sexual intercourse with the wife of another man, without the consent or connivance of that man.
Section 198(2) of the Criminal Procedure Code. – Section 198 of CrPC provides for prosecution for offences against marriage and states that no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under Section 497 of the Indian Penal Code.
Hence, the law in its present form does not punish a woman/wife under the provision of adultery. Thus, the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.
In this case, the Petitioner contended that sexual relationship of a husband with an unmarried women should also be comprehended with in the definition of ‘adultery’. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery?
The Three-Judge Bench of the Supreme Court in the case took strong note of the fact that the law penalizes only the husband and regard should be made to social progression, perceptual shift, gender equality and gender sensitivity. The Supreme Court while referring the matter to a larger Bench made the following remarkable observations with reference to Section 497 of the Indian Penal Code:
- That on a perusal of Section 497 of the Indian Penal Code we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved.
- That 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.
- That the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Thus, the provision 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.
- That time has come when the society must realise that a woman is equal to a man in every field. The impugned provision, prima facie, appears to be quite archaic.
- Thus analyzed, we think it appropriate that the earlier judgments required to be reconsidered regard being had to the social progression, perceptual shift, gender equality and gender sensitivity. That apart, there has to be a different kind of focus on the affirmative right conferred on women under Article 15 of the Constitution. In view of the aforesaid, we think it appropriate to refer the matter to a Constitution Bench. Let the papers be placed before the learned Chief Justice of India on the administrative side for constitution of the appropriate larger Bench.
- Reconsideration of earlier judgments– In the case, reference was also made to earlier cases wherein Section 497 of the Indian Penal Code has been rendered constitutionally valid. The cases are Yusuf Abdul Aziz vs. State of Bombay, Sowmithri Vishnu vs. Union of India and Another and V. Revathi vs. Union of India and Others. Thus, in view of societal progress the Supreme Court stated that that the earlier judgments required to be reconsidered by a Larger Bench of Supreme Court.
Read the entire case here.
 AIR 1954 SC 321
 (1985) Suppl.SCC 137
 (1988) 2 SCC 72