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Adultery law is anti-women & archaic: Supreme Court

The Bench, however, drew the distinction between adultery as a criminal offence, and as a civil wrong. 

New Delhi: The Supreme Court on Thursday said that the adultery related provisions in the Indian Penal Code (IPC) is anti-women and archaic. A five-judge constitution Bench headed by Chief Justice Dipak Misra made the observation on the second day of hearing on a bunch of petitions seeking quashing of Section 497 (adultery) of the IPC.

The Bench termed as “manifestly arbitrary” a penal provision, which required a woman to have her husband’s consent to indulge in adultery with another married man, and said it amounted to treating women as “chattel”.

The Bench, however, drew the distinction between adultery as a criminal offence, and as a civil wrong.

The apex court, which was hearing a petition challenging the constitutional validity of Section 497, said, “As far as criminalisation or decriminalisation of adultery as an offence is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by estranged couple in a court of law.”

Section 497 of the 158-year-old IPC says: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.” -Agencies

‘Sec 497 treats married women as chattel’

  • The Bench said aspects of Section 497 treated married women as ‘chattel’ on the ground that their relationship with other married persons depends on the ‘consent of her husband’.
  • The Bench said, ‘The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else’s desire.’
  • Also, a wife with an adulterous husband cannot file a complaint against him, or prosecute him criminally.
  • The Victorian-era law says a man cannot be prosecuted criminally if he has an extra-marital affair with an unmarried woman, a sex worker or a widow.
  • Only the husband of an adulterous wife can file criminal complaint. Women cannot be complainants.

Bigamy  adultery

  • The Bench referred to offence of bigamy under Section 494 of the IPC, and said that it is gender neutral as it punishes both husband and wife, and added that Section 497 only provides for punishment to the husband only.
  • Terming the provision as not being ‘gender neutral’, it referred to the test of ‘manifest arbitrariness’ and ‘discrimination’ under Article 14 (right to equality) to examine validity of a law.
  • ‘The distinction between Section 494 (bigamy) and Section 497 (adultery) itself makes Section 497 unconstitutional,’ it said.

Constitution bench disagrees with Centre’s stand

  • The Centre has argued that diluting Section 497 in any manner will be detrimental to the institution of marriage, and hence it cannot be declared unconstitutional.
  • The Bench referred to the submission of the Centre and said, ‘If a married man has sexual intercourse with unmarried woman, this is alright. But, does it not affect sanctity of marriage.’
  • ‘Look at the next part, if a married man has sexual intercourse with other married woman with the consent or connivance of her husband then also no offence is made out.

‘Violates right to equality’

  • The Bench said matrimonial sanctity is an issue, but the penal provision on adultery is apparently violative of the right to equality under the Constitution, as it treats married men and married women differently.
  • Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, referred to various facets of Section 497, and said it does not apply to a consenting sexual relationship between two unmarried adults, and it treats married men and women differently.
  • He said married men can be prosecuted for the offence of adultery but this is not the case with married women and referred to various inconsistencies in the Section.
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