New Delhi: In adultery, why it is always it is the man who is punished? This is the question, the Supreme Court has asked?
The apex court said it would examine the constitutional validity of the 157-year-old provision and issued notice to the Centre, seeking its response in four weeks.
The apex court of the country Friday agreed to examine the constitutional validity of a colonial era law on adultery which punishes only the man even though the woman, with whom he has had consensual sex, may be an equal partner. When the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of right to equality, the court observed.
Section 497 of the Indian Penal Code states that “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”.
The offence of adultery entails punishment of up to five years or with fine or with both. However, in such cases, the wife shall not be punishable as an abettor.
A three-member bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud termed the provision a “prima facie archaic” and said this “tantamounts to subordination of a woman where the Constitution confers equal status”.
The court said it needs to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.
Secondly, the bench said it will examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.
“Prima facie, 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 criminal offence but the other is absolved,” it said.
Section 497 of IPC is “prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India” pointed advocates Kaleeswaram Raj and Suvidutt M S, appearing for petitioner Joseph Shine, an Indian citizen but residing in Italy. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability”, they pointed out.The lawyers said the provision also indirectly discriminates against women by holding an erroneous presumption that they are the property of men. He said the said provisions have been treated to be constitutionally valid in three verdicts of the apex court in 1954, 1985 and in 1988. Raj said that petitioner has also challenged the Section 198(2) of CrPC, which deals with prosecution for offences against marriages.
