New Delhi: The Supreme Court on Thursday said that there is no rational basis in the adultery law and called the penal provision which requires a woman to have her husband’s consent to indulge in adultery as manifestly arbitrary, discriminatory and suffering from gender bias.

A five-Judge Constitution Bench, headed by Chief Justice Dipak Misra, said, “If there is consent of husband, then there is no adultery, which is absurd. This is another indicator of gender bias.”

“If sexual freedom is a fundamental right then why should adultery remain a criminal law for man alone. If adultery has its basis in woman being a property of man then Section 497 of IPC is discriminatory,” he said.

The bench said it would see whether the provision can stand the test of the right to equality on grounds like “discretion and manifest arbitrariness”.

The bench, which also included Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chandrachud and Indu Malhotra, also questioned the logic behind punishing only the man, treating him as an accused and not the woman by treating her as a victim when both the partners derive equal benefit.

The court made these initial observation during the hearing on petitions challenging the validity of IPC Section 497 punishing only the man in adultery cases. Arguments will continue on August 7.

“Adultery law reduces woman into a chattel. There is no crime if a woman has an extramarital relationship with the consent or connivance of her husband. Are women the chattels of their husbands?” asked the court.

Justice Malhotra said, “If there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel.”

Justice Chandrachud told counsel Kaleeswaram Raj, appearing for petitioner Joseph Shine, “Each partner to a marriage is equally responsible to keep the sanctity of marriage intact. If a married woman has sexual intercourse with a married man other than her husband, why should the man alone be punished when woman too is equal partner to the crime? Such a distinction appears manifestly arbitrary.”

Justice Chandrachud cited a situation where a woman has been staying away from her estranged husband for years. If a woman then has a sexual intercourse with some other man, will it still lead to prosecution under Section 497 on a complaint by her estranged husband? This provision is “peculiar” as there is no offence if sexual intercourse is done by a man with another’s wife with the consent or connivance of that woman’s husband, he added.

The judge pointed out that the government’s rationale that this provision will protect sanctity of marriage doesn’t look sound.

“Sanctity of marriage is gone even when a married man has sexual intercourse with an unmarried woman but that’s not a crime. It is a crime only if a man has relations with a married woman and the husband of the woman complains. The judge remarked that sanctity of marriage goes out of the window in such situations but the legislature has criminalised only one instance,” he said.

CJI Misra, however, drew the distinction between adultery as a criminal offence and as a civil wrong which has been used as a ground for seeking divorce in matrimonial disputes.

The apex court 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.”    

“On arbitrariness test, the fact that husband’s connivance will not make it a crime is manifestly arbitrary,” the bench said.       

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 and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

The CJI said, “This provision 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 the criminal offence but the other is absolved. It seems to be based on a societal presumption.”

A counsel appearing for a petitioner submitted that the apex court had upheld this provision in three judgments, yet it needed a re-look in the context of developments in the society.

He argued that Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution.

He said Section 497 of the IPC indirectly discriminates against women by holding an erroneous presumption that women are the property of the men.

Senior counsel Meenakshi Arora traced the genesis of the provision and submitted that the provision was introduced when woman was treated as the property of the husband.

Justice Nariman observed that Lord Macaulay (author of IPC) himself did not want to include this provision in the penal code.