- The Union government told the Supreme Court that it does not want to drop adultery as an offence, saying such a move would only weaken the institution of marriage.
Section-497 and Background of issue:
What is Section-497 of IPC?
- Adultery means voluntary sexual intercourse of a married person other than with spouse.
- In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860.
- Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape.
- That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman.
Issues with section:
- It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it.
- As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors i.e. one who instigates, encourages or assists another to commit an offence.
- Hence, in case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer.
- However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress.
- Thus, the provision deems that husbands have a free licence under the law to have extra-marital relationships with unmarried women.
SC judgment in past:
- The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.
- A three-judge bench had in 1985 dismissed argument on Section 497 was discriminatory.
- Court held that it is the policy of the law to not to punish women for adultery and policies could not be questioned.
- Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
- The judgment said a wife could always initiate civil action against her unfaithful husband.
- The court agreed that “a man seducing the wife of another” was the most seen and felt evil in society.
- In 1988, a two-judge Bench, in V. Revathi versus Union of India, denied gender discrimination in the fact that only the adulterer-man is punished and not the wife who consensually entered into the adulterous relationship.
Fresh petition and their argument:
- A fresh petition was filed before Supreme Court that challenge the Constitutionality of Section 497 and asked to annul Section-497 as unconstitutional.
- The petition also challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure, which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.
- It is said that the penal section was framed at a time when women were considered a man’s property.
- It challenges Section 497 under Article 14 on the grounds that it makes an arbitrary discrimination based on sex.
- They said it amounts to a violation of a women’s fundamental right against discrimination under Article 15 when law “assumes a patronising attitude to women.”
- They ask why prosecution under Section 497 is completely dependent on the husband’s word.
Change in SC’s views:
- Accepting the petition, a three-judge Bench, led by Chief Justice of India (CJI) Dipak Misra had observed that the provision raised a question mark on social progress, outlook, gender equality and gender sensitivity.
- Thus the court agree that it was time to bring to the forefront a different view with the focus on the rights of women. Terming the provision “quite archaic,” the court observed in the order that when society progresses, rights are conformed and a new generation of thoughts should spring forth.
- This decision of the Supreme Court to re-examine the offence of adultery is prima facie an admission that the court has consistently gone wrong.
- A five-judge constitution bench is expected to hear the case after settling the petitions on Section-377 of IPC.
Question before court:
- The court would examine two aspects of the penal provision.
- One, why does Section 497 treat the man as the adulterer and the married woman as a victim.
- Two, the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the property of her husband or a passive object without a mind of her own?
- The Constitution Bench would decide whether the pre-Independence provision of adultery in the IPC treated a married woman as her husband’s “subordinate” and violated the constitutional concepts of gender equality and sensitivity.
Centre support section-497:
- The Centre said the provision punishing adultery – Section 497 of the Indian Penal Code (IPC) – supports, safeguards and protects the institution of marriage.
- It said, scrapping Section 497 of the Indian Penal Code and the Section 198(2) Criminal will prove to be detrimental to the intrinsic Indian ethos, which gives paramount importance to the institution and sanctity of marriage.
- The law was enacted to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society. The decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in laxity in the marital bond
- The government agreed to the thought that stability of a marriage is not an ideal to be scorned.