The Supreme Court on Friday referred to a five-judge Constitution Bench a plea challenging the constitutional validity of the IPC's Section 497.
The section stipulates prosecution of the man in an adulterous relationship with a married woman and lets off the woman who is otherwise an equal participant in the extramarital affair.
Referring to the earlier two judgments of the top court upholding this section, the bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud said these need reconsideration.
The top court, by its 1954 and later in 1985 order by the bench of four judges and three judges respectively, had upheld the validity of this section of the Indian Penal Code.
Holding that these judgments needed to reconsidered, the court said when there is societal progress, outlook, gender equality and gender sensitivity, there has to be a different kind of focus on the affirmative rights conferred on the women.
Section 497 on adultery says "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 order referring the challenge to the validity of Section 497 to the Constitution Bench came on a plea by petitioner Joseph Shine.
The petitioner has also challenged Section 198 of the Code of Criminal Procedure that allows the aggrieved husband of the married woman in adulterous relationship to file a complaint and not the aggrieved wife of the man in adulterous relationship.
Shine has questioned the validity of these sections on the grounds of their being violative of the Constitution's Articles 14 (Equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).
Arguments against Sections 497 and 498
This is not the first time that the law has been called into question. Section 497 and 498 of the IPC were enacted in 1860 which makes them quite archaic.
While the law is biased against men as it only criminalises them, it has also been argued that it has a patronising attitude towards women.
To begin with, it implies that while a man having sexual relations with the wife of another man, without the latter’s consent or connivance, is guilty of adultery. However, if a married man has sexual relations with a widow or a divorcee, it is not a crime.
Section 498 describes a man guilty of adultery as one who “takes or entices away” a married woman. This not only perpetuates the idea of women as passive objects, but also that they are properties of their husbands once married. It also doesn’t take into account a woman’s agency or sexual expression and sees the husband of this woman as the main aggrieved.
The crime can also be reported only by the husband of the woman, or a person in whose care the husband has left her, which ultimately harms the interest of women who may be victims of adultery.
The root of ‘adultery’ in itself is in the word ‘adulteration’ which means to make something impure. The idea that a married woman is rendered impure if she has sex with man other than her husband, and that her husband is most affected by it, just proves that patriarchy ultimately does no one any good.
(With IANS inputs)