INTRODUCTION
Section 498[1] of the Indian Penal Code (IPC) addresses the offence of enticing or taking away a married woman with a criminal intention. An examination of this provision becomes particularly relevant within the context of yielding social norms and legal perspectives. Subsequently, after independence, the Indian judiciary has played a pivotal role in interpreting and challenging certain archaic provisions within the Indian Penal Code. One such instance was the case of Joseph Shine v. Union of India[2], where a five-bench judge of the Supreme Court declared Section 497[3] unconstitutional, which was seen as reflecting an outdated and gender-biased perspective.
CJI Dipak Mishra emphasized the ability of the court to diverge from traditions and precedent to align with the evolving liberal views of the society.[4]The Supreme Court in Joesph Shine not only struck down Section 497[5] but also laid the foundation for re-evaluating similar provisions that might infringe upon individual liberties and privacy. Section 498 of the IPC deals with the offence of enticement, particularly for married women, which is scrutinized in light of the discussion surrounding Section 497[6].
WHAT IS SECTION 498 IPC?
Section 498[7] of the Indian Penal Code reads as follows: “Enticing or taking away or detaining with criminal intent a married woman. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both.”
The offence involves three key elements:
- Taking, enticing, concealing, or detaining another man’s wife from either the husband or someone caring for her on his behalf.
- Knowing or having reason to believe that she is another man’s wife.
- The action must be with the intent that she engages in illicit intercourse.[8]
The term “takes or entices away” doesn’t include taking a woman with the consent of the person responsible for her care.[9] The act of taking doesn’t necessarily imply force and is synonymous with enticing.[10] If the accused personally and actively assists the wife to get away from her husband’s house or from the custody of any person who was taking care of her on behalf of the husband, this would amount to taking.[11]
It is the act of taking or enticing the wife for illicit purposes that constitutes the offence, even if the woman willingly accompanies the accused.[12] The Code does not absolve a person solely based on the husband’s connivance; the essential element is the accused taking the wife with criminal intent. [13]
JOSEPH SHINE V. UNION OF INDIA
Joseph Shine, a non-resident from Kerala, filed a public interest litigation (PIL) through Article 32 [14] of the Constitution, challenging the constitutional validity of Section 497[15] of the IPC read with Section 198(2) [16] of the Criminal Procedure Code, 1973. Initially, a three-judge bench heard the case, but it was later referred to a five-judge Constitution Bench. The Court, led by the then Chief Justice Dipak Misra, scrutinized the validity of earlier judgments
by Yusuf Abdul [17] Aziz, Sowmithri Vishnu[18], and V. Revathi[19], which had upheld the constitutionality of Section 497. On September 27, 2018, the Bench unanimously struck down Section 497[20] of the IPC as unconstitutional, decriminalizing the offence of adultery, being arbitrary, gender discriminatory, encroachment into women’s identity, dignity, liberty, privacy, sexual autonomy, and freedom to make independent choice in matters of sexuality.
CONSTITUTIONAL VALIDITY OF SECTION 498 IPC
The Joseph Shine[21] case holds significance beyond the realm of adultery as it raises questions about the constitutional validity of Section 498[22] IPC. The striking down of Section 497 [23] underscores evolving constitutional perspectives on issues related to personal autonomy, privacy, and gender equality, which sets a precedent for reevaluating and challenging the constitutionality of Section 498 [24] IPC.
Section 498 [25] of the IPC violates Article 14 [26] of the Indian Constitution as it fails to satisfy the test of reasonable classification. Under Section 498[27], only the husband has the right to prosecute the man who entices his wife, but the wife is not entitled to the right to prosecute the woman who entices her husband. There is no intelligible difference since men and women are equal partners in a marriage. The classification bears no rational nexus with the object sought to be achieved. The classification has no relation to protecting and preserving the sanctity of marriage. If the objective was to protect the sanctity of marriage, there is no justification as to why the wife is not entitled to prosecute the woman who entices her husband. The provision treats women like chattels as the property of their husbands, reflecting the Victorian era of morality. The provision treats the offence as a theft of the property of the man.
A provision such as Section 498[28] is not necessary since Section 366[29] covers offences such as kidnapping and abduction in case the wife is taken away without her consent. The underlying idea of Section 498[30] of the IPC is rather to protect the proprietary right of the husband, which is irrational and manifestly arbitrary and thus in violation of Art. 14[31]. In the Joseph Shine[32] case, the Supreme Court stated that the object of Sec. 497[33] was only to protect and preserve the proprietary rights of the husband and thus declared that it was manifestly arbitrary in violation of Article 14[34].
It discriminates against women, as the wife is not entitled to the right to prosecute the woman who entices her husband. It is thus violative of Article 15(1) [35] as it discriminates against women only based on sex. The Supreme Court in the Joseph Shine case held Section 497[36] of the IPC as discriminatory against women and violative of Article 14 [37] and Article 15(1)[38] as the wife of the adulterous male cannot prosecute her husband for marital infidelity. Section 498[39] of the IPC also violates Article 21 [40] of the Constitution, which provides the right to dignity, the right to liberty, the right to privacy, and the right to sexual autonomy.
It disregards that men and women are equal partners in a marriage and provides the man with exclusive control over the sexuality of his wife. As held in Joseph Shine[41], marriage does not result in the ceding of the autonomy of one spouse to another. Thus, the right to sexual autonomy under Article 21[42] stands infringed. The provision subjects the woman to the will of her husband and subordinates the woman to an inferior position, thereby offending her dignity. Section 498[43] curtails the dignity of women by creating discriminatory distinctions based on gender stereotypes. Thus, the right to dignity under Article 21[44] is violated.
Criminalizing enticement for illicit intercourse violates the right to privacy under Art 21. Section 498[45] makes it an offence only when there is an intention to commit illicit intercourse when the wife elopes with another man. However, there would be no offence if the wife eloped with another man without any intention to commit illicit intercourse. Treating enticement with the intention of illicit intercourse would be tantamount to the state entering a
real private realm since adultery is no longer an offence as Section 497[46] is struck down. The Supreme Court in the Joseph Shine[47] case acknowledged that sexual privacy is a natural right protected under the Constitution. The court held that criminalizing consensual relationships is a denial of the right to privacy.
CONCLUSION
In conclusion, while the Joseph Shine[48] case marked a significant step towards dismantling gender biases within the Indian legal system, it is crucial to recognize that challenges persist, particularly concerning Section 498[49] of the Indian Penal Code (IPC). Despite the progressive ruling in Joseph Shine, Section 498[50] continues to impede the autonomy of married women and hinders their confidence in asserting independence.
The presence of Section 498[51] in the Penal Code not only perpetuates gender biases but also poses a substantial threat to the fundamental rights of married women. The declaration of Section 498 [52] as unconstitutional would serve a dual purpose. Firstly, it would fortify the principles laid down in the Joseph Shine[53] judgment, reinforcing the commitment to dismantling archaic and discriminatory legal provisions. Secondly, and perhaps more significantly, it would empower married women by granting them long-awaited sexual autonomy and equal status within a marriage—rights that should be intrinsic rather than perceived as privileges.
The persistence of such archaic laws calls for urgent attention and reform. The executive and legislative branches must acknowledge the injury caused by these provisions, and the concerns of those affected, and expedite the removal of such antiquated laws from our Penal Code. A change in thinking and attitude is imperative to align legal frameworks with the principles of justice, equality, and individual autonomy.
Authors Name: Prithve.R & Diviyaa Sri R (Sastra Deemed University, Thanjavur)
Reference(s):
[1]Indian Penal Code 1860, s. 498
[2]Joseph Shine v. Union of India WP (Crl) 194/2017
[3]Indian Penal Code 1860, s. 497
[4]Joseph Shine v. Union of India WP (Crl) 194/2017
[5]Indian Penal Code 1860, s. 497
[6]Indian Penal Code 1860, s. 497
[7]Indian Penal Code 1860, s. 498
[8]Alamgir and Anr v. The State of Bihar, SLP (Crl) 187/1956
[9]Ibid
[10]Ibid
[11]Ibid
[12]Ibid
[13]Ibid
[14]Constitution of India, 1950, Art. 32
[15]Indian Penal Code 1860, s. 497
[16]Code of Criminal Procedure 1973, s. 198(2)
[17]Yusuf Abdul Aziz v. The State of Bombay Andhusseinbhoy Laljee, AP (Crl) 349/1951
[18]Smt. Sowmithri Vishnu v. Union of India and Anr (1988) WP (Crl) 845/1980
[19]V. Revathi v. Union of India and Ors. WP (Crl) 562/1986
[20]Ibid
[21]Joseph Shine v. Union of India WP (Crl) 194/2017
[22]Indian Penal Code 1860, s. 498
[23]Indian Penal Code 1860, s. 497
[24]Indian Penal Code 1860, s. 498
[25]Ibid
[26]Joseph Shine v. Union of India WP (Crl) 194/2017
[27]Indian Penal Code 1860, s. 498
[28]Ibid
[29]Indian Penal Code 1860, s. 366
[30]Indian Penal Code 1860, s. 498
[31]Constitution of India, 1950, Art. 14
[32]Joseph Shine v. Union of India WP (Crl) 194/2017
[33]Indian Penal Code 1860, s. 497
[34]Constitution of India, 1950, Art. 14
[35]Constitution of India, 1950, Art. 15(1)
[36]Indian Penal Code 1860, s. 497
[37]Constitution of India, 1950, Art. 14
[38]Constitution of India, 1950, Art. 15(1)
[39]Indian Penal Code 1860, s. 498
[40]Constitution of India, 1950, Art. 21
[41]Joseph Shine v. Union of India WP (Crl) 194/2017
[42]Constitution of India, 1950, Art. 21
[43]Indian Penal Code 1860, s. 498
[44]Constitution of India, 1950, Art. 21
[45]Indian Penal Code 1860, s. 498
[46]Indian Penal Code 1860, s. 497
[47]Joseph Shine v. Union of India WP (Crl) 194/2017
[48]Ibid
[49]Indian Penal Code 1860, s. 498
[50]Indian Penal Code 1860, s. 498
[51]Ibid
[52]Ibid
[53]Joseph Shine v. Union of India WP (Crl) 194/2017
