The Supreme Court on Friday referred to a Constitution Bench a petition to decide if the pre-Independence provision of adultery in the Indian Penal Code treats a married woman as a commodity owned by her husband and violates the constitutional concepts of gender equality and sensitivity.
The petition wants Section 497 (adultery) IPC to be dropped as a criminal offence from the penal code.
Terming the penal provision as archaic, a three-judge Bench led by Chief Justice of India Dipak Misra said it was time to reconsider its past decisions and consistent view from 1954 onwards that the penal provision was necessary to uphold family ties.
In the Yusuf Abdul Aziz case judgment of 1954, the Supreme Court, while answering the question why a wife cannot be prosecuted as an abettor to adultery, said the protection from prosecution given to women under Section 497 was in tune with Article 15 (3) of the Constitution, which allows the legislature to make “special provisions” which are “beneficial” for women and children.
Section 497 of the Code mandates that if a man has sexual intercourse with another’s wife without the husband’s “consent or connivance”, he is “guilty of the offence of adultery and shall be punished.”
In the 1985 decision in the Sowmithri Vishnu case, the apex court had concluded that “a man seducing the wife of another” was the most seen and felt evil in society. It had rejected arguments that while Section 497 gave the husband the exclusive right to prosecute his wife’s lover, a similar right was not conferred on a wife to prosecute the woman with whom her husband has committed adultery.
Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.
Further, the law does not take into account cases where the husband has sexual relations with an unmarried woman.
The court had issued notice on December 8, 2017 on a petition filed by Joseph Shine, represented by advocates Kaleeswaram Raj and Suvidutt M.S.
A three-judge Bench led by Chief Justice Dipak Misra observed in the order that the provision raised a question mark on social progress, outlook, gender equality and gender sensitivity. It was time to bring to the forefront a different view with focus on the rights of women, Chief Justice Misra observed.
The Constitution Bench would likely consider whether Section 497 would treat the man as the adulterer and the married woman as always a victim.
The larger Bench may also examine why the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?
In 1988, a two-judge Supreme Court Bench, in the V. Revathi versus Union of India case, had denied there is gender discrimination in the fact that only the adulterer-man is punished and not the wife who consensually entered into the adulterous relationship.
