New Delhi: The law on adultery came under scrutiny today with the Supreme Court (SC) questioning why only men, not women, should be punishable for the offence.
Questing the validity of Section 497 of the India Penal Code (IPC), which criminalises adultery only by men, a Bench headed by CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud issued notice to the Centre on a Public Interest Litigation (PIL).
The Centre is expected to reply within four weeks. The PIL moved by Kerala native Joseph Shine claims that the law is discriminatory, biased towards women, and should therefore be reviewed.
Supreme Court said that though the “act is hypothetically capable of being committed by both the man and woman”, only the man is “liable for criminal offence”. Though criminal law proceeds on gender neutrality, “this provision is an aberration to the same”.
Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies”, the SC added. Section 497 states: “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 court further noted, “It is perceivable from the language of the provision the fulcrum of offence is destroyed once the consent of husband is obtained. Viewed from that scenario, the provision creates a dent on the independent identity of women.”
Advocates K Raj and S Sundaram, who appeared for the petitioner, said “we have made a plea to the SC to invalidate Section 497”. The PIL says that Section 497 is unconstitutional because it has a provision of punishment only for men, not women.
The provision “violates” Article 14 of the Constitution, which states, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
“We have also challenged the text of this Section that sates if the husband’s consent is not given, only then it is an offence. It is a male chauvinistic provision in the sense that it gives a free hand to the husband to determine whatever it is an offence or not. This is not a gender neutral rather gender bias provision and the Constitution is always gender neutral,” advocate Raj added.