New Delhi: The Supreme Court will on Thursday deliver its verdict on pleas challenging the constitutional validity of Section 497 (Adultery) of the Indian Penal Code. The petitioners want the adultery law to be gender-neutral, which currently punishes only the man, and not the woman.
A five-judge Constitution Bench of the top court headed by Chief Justice Dipak Misra had reserved the verdict on the matter in August while observing that infidelity is the cause of breaking up of royal marriages.
“The idea of imposition of Section 497 of the Indian Penal Code is not to enforce monogamy but to ensure to protect fidelity in the marriage, which is a promise made by both the parties while entering to a marriage,” the bench had observed.
Hearing the pleas seeking quashing of the adultery provision in the IPC on the ground that it only punishes married men for having extra-marital sexual relations with a married woman, the top court had said it will not touch the law to make it an offence for women too.
The court also questioned the Centre’s stand of defending the law of adultery, asking the latter “what public good” the penal law served as it provided that no offence would be made if the husband of a woman approves an adulterous relationship.
The Supreme Court’s observation followed an affidavit by the Centre which said that adultery has been made an offence by keeping in mind the sanctity of marriage as an institution.
Referring to the inconsistencies in the penal provision, the bench posed that the burden of maintaining the sanctity of marriage rested only with the woman and not the husband.
Hearing the petition filed by businessman Joseph Shine, the top court, in its August 2 hearing, had said that the adultery law “seems to be pro-women but it is anti-women in a grave ostensible way.”
“The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else’s desire. That’s not Indian morality.”
“Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic,” the Supreme Court said.
Section 497 of the 158-year-old IPC 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.”
“He 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 section says.
The top court had also said that the law on adultery violates the fundamental Right to Equality as it treats married men and women differently.
Terming IPC’s Section 497 “manifestly arbitrary”, a five-judge Constitution bench headed by Chief Justice Dipak Misra said it treats a married woman as “chattel” because her relationship with a married man depends on the “consent or connivance of her husband”.
On January 5, the apex court had referred to a five-judge constitution bench the plea challenging the validity of the penal law on adultery.
The court had taken a prima facie view that though the criminal law proceeded on “gender neutrality”, the concept was absent in Section 497.
The Centre defended Section 497 by referring to a judgment passed in 1985 Sowmithri Vishnu vs Union of India case. Quoting from the Supreme Court judgment, the home ministry said, It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law.
Stability of marriages is not an ideal to be scorned.
A three-judge Supreme Court bench headed by the then Chief Justice YV Chandrachud had upheld the constitutionality of Section 497 of the IPC.