" ADULTERY NO CRIME BUT A CIVIL WRONG".
Joseph Shine
v.s U.O.I .... Supreme court in its landmark judgment held Sec 487,
Adultery Law is unconstitutional and is violative of Article-14,15,21
Constitution of India.
It is declared that :
(i) Section 497 is
struck down as unconstitutional being violative of Articles 14, 15 and 21 of
the Constitution.
(ii) Section 198(2) of the Cr.P.C. which contains
the procedure for prosecution under Chapter XX of the I.P.C. shall be
unconstitutional only to the extent that it is applicable to the offence of
Adultery under Section 497.
While arriving at the
Judgment the age old law was declared void and unconstitutional. Adultery is a
civil wrong and no longer a crime. The court quoted much past judgment among
one was Justice Puttaswamy case in details.
What constitute criminal
offence was also discussed in details:
The autonomy of an
individual to make his or her choices with respect to his/her sexuality in the
most intimate spaces of life should be protected from public censure through
criminal sanction.
The autonomy of the
individual to take such decisions, which are purely personal, would be
repugnant to any interference by the State to take action purportedly in the
„best interest‟ of the individual.
Andrew Ashworth and Jeremy
Horder - in their commentary titled „Principles of Criminal Law‟ have
stated that the traditional starting point of criminalization is the "harm
principle" the essence of which is that the State is justified in
criminalizing a conduct which causes harm to others. The authors opine that the
three elements for criminilization are:
(i) Harm,
(ii) Wrong doing, and
(iii) Public element,
Which are required to
be proved before the State can classify a wrongful act as a criminal offence.
John Stuart Mill states
that ―the only purpose for which power can be rightly exercised over the member
of a civilized community against his will is to prevent harm to others. The
other important element is wrongfulness.
Andrew Simester and
Andreas von Hirsch opine that a necessary pre-requisite
of criminalization is that the conduct amounts to a moral wrong.
That even though sexual
infidelity may be morally wrong conduct, this may not be a sufficient condition
to criminalize the same.
“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."
Adultery undoubtedly
is a moral wrong qua the spouse and the family. The issue is whether there
is a sufficient element of wrongfulness to society in general, in order to
bring it within the ambit of criminal law?
The court while discussing
the three pillar of criminal offence- Article 14 Article 15 and Article 21
The court opined
Adultery undoubtedly is a moral wrong qua the spouse and the Family. The
issue is whether there is a sufficient element of wrongfulness to society in general, in
order to bring it within the ambit of criminal law?
The element of public
censure, visiting the delinquent with penal consequences, and overriding
individual rights. Would be justified only when the society is directly
impacted by such conduct.
In fact, a much
stronger justification is required where an offence is punishable with imprisonment.
The state must follow the minimalist approach in criminilazation of offences,
keeping in view the respect for autonomy of the individual to make his/her
personal choices. The right to live with dignity includes the right not to be
subjected to public censure and punishment by the State except where absolutely
necessary.
in
order to determine what conduct a state requires to intervene into criminal
sanction,the state must consider whether
the civil remedy will serve the purpose.
where a civil
remedy for a wrongful act is sufficient, it may not warrant criminal sanction
by state.
The husband is not
consider as master any longer now the wife has choice and liberty to be with
anyone she wishes and the husband cannot prosecute a criminal trial. But
husband can file a civil suit and wife becomes not entitles to Maintenance
against husband U/s 125 Cr,P.C or any other relevant law. The husband is
also entitled to take divorce against adulterous wife.
Discliamer:
The material and view is prepared by Adv Bishwa Kumar Jain and is the
result of personal knowledge and have no legal value. The information and views
are not intended to create, a legal relationship or advertisement. The reader
should not rely or act upon this information without seeking professional
counsel or legal advisor or an Advocate. The author shall not be responsible
for any loss in any way what so ever and in any manner.
Advocate:
Bishwa Kumar Jain
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9582584584
B
com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K. Practice Advocate Supreme Court and High
Court of Delhi.
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