Terming the 158-year-old provision on adultery contained in IPC Section 497 as “archaic”, the Supreme Court on Friday set up a five-judge Constitution Bench to whether it violated the rights of women vis-à-vis men under Article 14 and 15 of Constitution. The Court prima facie felt that the law recognised adultery between a man and a married woman only when the woman’s husband would complain. Further, if a married man committed sexual intercourse with a woman outside his marriage, the man’s wife had no recourse to allege adultery.
Two apex court decisions in the past, one of 1954 and another of 1985, held the said provision to be non-discriminatory and this was the reason for a three-judge bench headed by CJI Dipak Misra to refer the matter to a Constitution Bench for effectively overruling the said decisions.
The Bench, also comprising Justices AM Khanwilkar and DY Chandrachud, was of the opinion that although criminal law proceeds on “gender neutrality”, the concept was absent in Section 497 that deals with adultery. It referred to societal transformation and concepts of “gender equality” to suggest that affirmative rights have to be conferred upon women and judgments decided at a time when the society was patriarchal need re-examination.
The issue came for consideration before the Court in a PIl filed by Joseph Shine, an Indian living in Italy who raised the question as to why adultery offence is directed against only the male and not female, although she may equally connive in the crime.