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Supreme Court of India· 31 January 2023

Does striking down Section 497 IPC mean the Court approved of adultery?

Joseph Shine v. Union of India
2023 INSC 87 · Miscellaneous Application No. 2204 of 2020 in Writ Petition (Criminal) No. 194 of 2017
Coram: K. M. Joseph; Ajay Rastogi; Aniruddha Bose; Hrishikesh Roy; C.T. Ravikumar
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Answer

No. It is not as if the Court approved of adultery. It found that adultery may be a moral wrong, held that it will continue to be a ground for securing dissolution of marriage, and described it as a civil wrong; the provision was struck down on the premise that it offended Articles 14, 15 and 21 of the Constitution.

Headnote

Army Act 1950 — s.45 — s.63 — s.69 — Constitution of India — Art.33 — Indian Penal Code 1860 — s.497 — Clarification of a judgment — Miscellaneous application in the guise of review — Indian Penal Code 1860 — s.497 — Army Act 1950 — s.45 — s.63 — Scope of Joseph Shine clarified — Held: Joseph Shine struck down Section 497 of the Penal Code and Section 198(2) of the Code as offending Articles 14, 15 and 21, and had no occasion to consider the Acts governing the Armed Forces; it did not pronounce on Sections 45 and 63 of the Army Act 1950 or their counterparts. (¶24) Practice and procedure — Application for clarification or modification which is in substance a review — Held further: An application styled as one for clarification, modification or recall which is in substance a review deserves to be rejected, since what cannot be done directly cannot be permitted to be done indirectly. (¶18) Practice and procedure — Finality of a judicial pronouncement — Held further: A judicial pronouncement cannot be modified once delivered by filing a miscellaneous application; the practice reduces litigation to a gambit and must be firmly discouraged. Position clarified; application disposed of. (¶19, 25)

In the Court's own words
Paragraph 23This Court in the case in question was concerned only with the validity of Section 497 IPC and Section 198 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity). This Court spoke through separate but concurrent judgments. Apart from the lead judgment of Hon’ble Mr. Justice Dipak Misra, former Chief Justice of this Court, and with whom, Hon’ble Mr. Justice A. M. Khanwilkar concurred, the other learned Judges wrote separate opinions. However, they agreed that Section 497 IPC and Section 198 Cr.P.C. were unconstitutional. The premise on which the provision was struck down was that it offended Articles 14, 15 and 21 of the Constitution. In this case, this Court had no occasion, whatsoever, to consider the effect of the provisions of the Acts in question. In fact, we may notice MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. that it is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong.
Acts & Sections
s.45 Army Act 1950s.63 Army Act 1950s.69 Army Act 1950Art.33 Constitution of Indias.497 Indian Penal Code 1860s.198(2) Code of Criminal Procedure 1973

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Also decided in this judgment
Did Joseph Shine decide anything about Sections 45 and 63 of the Army Act 1950?Can a judgment be modified by an application styled as one for clarification?
Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections