The Supreme Court on Friday sought the assistance of the Centre to set right an “archaic” law in the Indian Penal Code relating to adultery (Section 497) where a man who has sexual intercourse with a married woman with her husband’s consent is not accused of committing adultery.
According to this provision, only the man can be punished for his licentious behaviour while the woman is treated as a victim despite her promiscuousness.
The debate to seek an overhaul of the Victorian-era law rose after a PIl filed by one Joseph Shine challenged the constitutional validity of Section 497 and the correctness of three past decisions by the SC upholding the law on adultery as contained in the IPC.
The Bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud noted that its decisions in the past were based on the Constitutional ethos contained in Article 15, which protects women against any kind of discrimination. The Bench noted that in 1954, when a four-judge Bench of the SC in the Yusuf Abdul Aziz vs State of Bombay first upheld the constitutional validity of IPC Section 497, it relied on Article 15(3) which confers an obligation upon the State to make special provisions for women and children.
Issuing notice to the Centre, the Bench observed, “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.”
Advocate Kaleeswaram Raj, who argued the petition, showed how Section 497 exempted the married woman from being tried even as an “abetter” although both the man and woman are equally guilty of the crime.
He cited another flaw in the provision where a man will not be punished for adultery if the woman’s husband does not oppose to the relationship or in other words, consents or
connives to such extra-marital affair of his wife. Finding the law bizarre, the Bench said, “The fulcrum of the offence is destroyed once the consent or the
connivance of the husband is established. This will tantamount to subordination of a woman when the Constitution confers her equal status.”
Viewed in the present times when women have equal rights as men, the bench noted that such a provision tends to view wife as a “commodity” if her husband consents to another man having sexual relationship with her. “This provision prima facie appears to be very archaic. When society progresses and the rights are conferred, the new generation of thoughts spring, and that is why we are inclined to issue notice.”
Interestingly, the lawyer further pointed out other flaws in the existing law under Section 198(2) of Criminal Procedure Code which allows only the husband of the wife to lodge a complaint. Hence, the provision of adultery fails to contemplate a scenario where a married man commits adultery and his wife has no remedy to lodge a case.
Equally, if the woman involved in the relationship is unmarried, even then the wife of the promiscuous husband is rendered helpless by this law.