Supreme Court: Understanding India’s Adultery law And Its Implicit  Discrimination

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Supreme Court Understanding India’s Adultery law And Its Implicit  Discrimination
Supreme Court Understanding India’s Adultery law And Its Implicit  Discrimination

In a recent announcement, the Supreme Court stated that a Constitution bench would be re-examining the constitutionality of Section 497 of the Indian Penal Code which deals with the provisions for adultery.

As a criminal offence adultery can invite penalties of jailtime of up to five years, or a fine, or both.

The three-judge bench headed by Chief Justice Dipak Misra ordered the review based on a PIL that is challenging Section 497 of IPC, which states that for an offence of adultery the man is to be punished while the woman cannot be punished even as abettor.

The fact that Adultery is not considered a criminal offence for women is being seen as discriminatory, however there are other aspects to consider as well.

Woman Considered As ‘Property’

The language used in Section 497 reflects how women are considered as “possession” and “property” of the husband.

Under the rules, any man having sexual intercourse with the wife of another man, without getting the consent of that man, is liable to be charged with adultery. The key phrases to be focused on here are “wife of another man” and “without the consent or connivance of husband”.

This implies that only sexual intercourse involving a married woman amounts to adultery under the law. Having sexual relations with a widow, an unmarried woman or a sex worker would not attract this section. This interpretation has been confirmed by the Delhi High Court in the case of Brij Lal Bishnoi v/s State (1996).

The most reasonable explanation for such provision is that the offender is to be charged for trespassing on a husband’s marital property and is therefore liable for prosecution for unlawful possession.

Current Law Discriminates By Allowing Only Affected Man  To Prosecute

Additionally, the section fails to confer any right on the women to initiate legal action against the adulterous husband or the woman with whom the husband has indulged in sexual intercourse. The husband alone has been granted the rights to prosecute the adulterer.

In Sowmithri Vishnu v/s Union of India (1985), the argument was presented that Section 497 violates Article 14 and 16 of the Constitution. However the Supreme Court dismissed the contentions then, stating that it is commonly accepted that “it is the man who is the seducer and not the woman,” overlooking the other aspect of the section.

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