Amid the ongoing demand for equality of all the genders, Supreme Court Of India has agreed to revisit the constitutional validity of the 157 years old archaic law in the Indian Penal Code which advocates the punishing of only men and not married women in case of adultery.
The British era rule certainly needs a revisit as it was created at a time when women used to stay within the boundaries of a house which might be the basis of the assumption that women can’t indulge in adultery. The current law always considers women as a victim and never an abettor of crime which also reflects that due to existing patriarchal forces during that period it was presumed that only a man can force the woman to indulge in adultery and she can’t commit it on her will.
A PIL was filed by an activist, Joseph Shine, challenging the constitutional validity of Section 497 of the IPC.This 157-year-old provision 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 law clearly stated that if a man establishes a consensual relationship with a married woman the man will be punished however the same will not apply to the women.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 the petition.
Another question which has been raised is based on the clause “without the consent or connivance of that man”, which shifts the power to the hands of the husband to decide whether the act was an offense or not.
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,“By presuming the woman to be a victim, has the law made a patronizing assumption?” he asked. On the second problematic part of the law, he observed,”A woman could enter into an adulterous relationship if she had the consent of her husband”. “Does this relegate her to the level of a commodity?” he asked.
The bench also said in a statement,”Time has come when the society must realize that a woman is equal to a man in every respect”.The supreme court said there doesn’t appear to be any reason to treat women differently and make an exception for women when “they are treated equally to men in all walks of life”. The top court also admitted a petition to drop adultery as a criminal offense. “It appears to be an archaic provision. When society progresses new generation of thoughts spring,” it said.
The Supreme Court would examine why does Section 497 treat a married man as the adulterer and the married woman as a victim.