Supreme Court will re-examine validity of 157-yr-old adultery law

New Delhi: The Supreme Court on Friday agreed to revisit the constitutional validity of the archaic adultery law in the Indian Penal Code (IPC) punishing only the men and not married women for adultery by treating her as a victim and never an abettor of crime.

A three-judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud issued a notice to the Centre on a petition filed by an activist, Joseph Shine, challenging the constitutional validity of Section 497 of the IPC.

This 157-year-old provision reads: “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.”

After hearing senior counsel Kaleeswaram Raj, who appeared for the petitioner, the bench in a brief order said: “Prima facie, on a perusal of Section 497 IPC, we find 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 the criminal offence but the other is absolved. It seems to be based on a societal presumption.”

Agreeing with the counsel, Justice Chandrachud said when a law “assumes a patronising attitude to women”, it needed to be seen if this meant a violation of women’s fundamental right against gender discrimination under Article 15 of the Constitution. “By presuming the woman to be a victim, has the law made a patronising assumption?” he asked. A woman could enter into an adulterous relationship if she had the consent of her husband, he observed. “Does this relegate her to the level of a commodity?” he asked.

The court, in its order, said ordinarily the criminal law proceeds on gender neutrality but in this provision, “as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the section that the fulcrum of the offence is destroyed once the consent or connivance of the husband is established.”

The bench said: “Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when society must realise a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When society progresses and rights are conferred, a new generation of thoughts spring, and that is why, we are inclined to issue notice.”

The counsel submitted that the court had upheld this provision in three judgments, yet it needed a relook in the context of developments in society. He argued that Section 497 IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Articles 14, 15 and 21 of the Constitution.

He argued that when sexual intercourse takes place with the consent of both parties, there is no good reason for excluding one party from liability. This discrimination is against the true scope and nature of Article 14. He said Section 497 IPC couldn’t be interpreted as a beneficial provision under Article 15(3) as well.

It also indirectly discriminates against women by holding an erroneous presumption that women are the property of men. This is further evidenced by the fact that if adultery is engaged with the consent of the woman’s husband, it ceases to be an offence, he said, and sought the striking down of this provision.