NEW DELHI: The Supreme Court agreed on Friday to examine the constitutional validity of a 157-year-old 'gender discriminatory' provision in Indian Penal Code which punishes a married man for adultery for consensual sexual relations with another man's wife.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud sought the Centre's response in four weeks to a PIL by Joseph Shine from Kerala who is employed at Trento in Italy on why a married man alone and not the consenting wife of another should be hauled up.
What persuaded the SC to examine the constitutional validity of what it felt might be an archaic provision was the clean chit given to the woman, irrespective of her role in the adulterous relationship, as also counsel Kaleeswaram Raj's argument that as per Section 497 no offence of adultery is committed if there was consensual sexual relation between an unmarried man and an unmarried woman; an unmarried man and a married woman; and between a married man and an unmarried woman.
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 bench said: "Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that 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."
"Ordinarily, 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" while leaving the adulterous married man to face the grind of the law, the CJI-led bench said.
The apex court's constitutional approach also stumbled upon another aberration in Section 497, which provided that it is not adultery if a married man had sexual relationship with a married woman with her husband's consent or connivance. The bench said: "it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. 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 the consent of the husband. This tantamount to subordination of a woman where the Constitution confers equal status."
While seeking the Centre's response within four weeks, the bench said: "A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice."