Even though the provision punishes an adulterous man with a term up to five years specifying that the woman cannot be booked even as an abettor.
The Supreme Court on Wednesday observed that Section 497 of the Indian Penal Code (IPC) that criminalises adultery is an “archaic provision”. According to the 158-year-old provision, a married man can be punished for having sex with a married woman without the consent or connivance of her husband.
A five-judge bench of the Supreme Court, headed by Chief Justice of India (CJI) Dipak Misra and comprising Justices Indu Malhotra, RF Nariman, AM Khanwilkar and DY Chandrachud, is hearing the matter on the constitutionality of adultery laws in India.
The bench observed that even though the provision punishes an adulterous man with a term up to five years specifying that the woman cannot be booked even as an abettor, it is more discriminatory towards the woman.
Justice Nariman said, “Requirement of the husband’s consent or connivance makes it appear as if the woman is a chattel or property of the husband." Terming the provision “manifestly arbitrary”, he said treating women as chattels of their husbands is violative of their Right to Life under Article 21 of the Indian Constitution.
CJI Dipak Misra said Section 497 is an archaic provision which might appear to be pro-women by protecting them from prosecution but is actually against them because it treats them as their husband’s chattel. “Where did they get this concept of consent of a husband for a woman to have intercourse with another married man?" he asked.
Countering the argument earlier presented by the Centre that decriminalizing adultery will impact the sanctity of the institution of marriage, the counsel appearing for the petitioners said Section 497 was never of much help in this regard. They stated that the provision does not punish a married man for having sex with an unmarried woman, a widow or a transgender.
The bench observed that striking down Section 497 will not imply that the Supreme Court gave licence to married men and women to engage in licentious behaviour out of wedlock. It asserted that adultery will still remain a gender neutral ground for divorce, and a restriction on the sexual freedom of married couples.
Justice Nariman remarked how Lord Macaulay, on whose work the IPC was framed in 1860, was himself opposed to criminalization of adultery, Live Law has reported.
Most countries have decriminalized adultery, including Sri Lanka, Bhutan and China; however, adultery is still a crime in Iran, Afghanistan and Brunei.The Centre is scheduled to present its arguments before the Supreme Court on August 7.The Great Diwali Discount!
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