The Supreme Court has agreed to review the constitutional validly of a colonial-time law dealing with adultery that penalizes only the man even though the woman is an equal and consenting partner.
The apex court also stated that if the husband consents to sexual intercourse between his wife and another man, then the offense of adultery doesn’t apply and turns the woman into a commodity which is against the idea of gender justice and also the mandate of right to equality.
Under Section 497 of the Indian Penal Code, a person having sexual intercourse who someone who the person knows to be the wife of another man without the consent of that man is guilty of adultery .
Adultery is punishable by upto five years in jail or a fine or with both. However in such cases, the wife is not punishable by law as an abettor.
Archaic Law That Is Tantamount To Subordination of Women
A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud noted that the law was “prima facie archaic” and that its treatment “tantamounts to subordination of a woman where the Constitution confers equal status”.
The bench highlighted that the Section 497 of the Indian Penal Code treats the wife as a victim and absolves her while treating the man as being liable for criminal offence. It observed that the provision seems to use a “societal presumption”, adding that typically the criminal law adopts a principle of gender neutrality but not in this case.
The justices further noted that the idea of an offence being created is removed once the consent or connivance of the husband is present. In these circumstances, the court observed that “the individual, independent identity of a woman” gets affected.
Justice Chandrachud stated that the law in the current form has a “patronising attitude” towards the woman treating her as a victim which can be seen as a violation of her fundamental right and also constitutes gender discrimination.
The court observed that the society must acknowledge that a woman was today equal to man in every field. It further noted that it was issuing notice in the matter because with the society progressing, a new “generation of thoughts spring.”
The bench has said that it will be testing the constitutional validity of the 157-year-old rule and has directed the Centre to submit a response in four weeks.
Will Review Why Woman Must Not Be Punished Equally
In its review, the court has said that it will scrutinize why a married woman who may have participated equally in the offence of adultery with another married man not her husband shouldn’t be punished along with the man
Additionally, the bench will be examining whether in case a woman’s husband provides his consent to her having sexual intercourse with another married man , the woman is converted to a commodity.
Law Treats Woman As Property of Man
Advocates Kaleeswaram Raj and Suvidutt M S, appearing on behalf of petitioner Joseph Shine, an Indian citizen residing in Italy, argued that section 497 was “prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of”.
The counsel stated that when sexual intercourse occurs with consent of both parties, there was no reason to exclude one of them from liability.
Raj further pointed out that indirectly the law discriminates against women and holds them as the property of men. The lawyer added that the provisions were currently treated as being constitutionally valid as per three apex court verdicts in 1954, 1985 and in 1988.
Raj added that the petitioner was also challenging the Section 198(2) of CrPC, which tackles provisions related to prosecution for offences against marriages.
