Adultery law arbitrary: SC

Satya Prakash

Tribune News Service

New Delhi, August 2

Terming Section 497 of the Indian Penal Code as “manifestly arbitrary”, the Supreme Court on Thursday raised questions over desirability of the law on adultery, saying it treated a woman as a “chattel” as it required her to get husband’s consent to have sexual relationship with another man. “If there is consent of husband, then there is no adultery, which is absurd. This is another indicator of gender bias in which a woman is considered as chattel,” said a five-judge Constitution Bench headed by Chief Justice Dipak Misra.

The Bench, which also comprised Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, however, said de-criminalising it did not mean giving licence for it.

According to Section 497 of IPC, whosoever has sexual intercourse with the wife of another man is guilty of adultery, which is punishable with imprisonment of either description for a term that may extend to five years, or with fine, or with both. It says the woman in question can’t be punished as an abettor.

An Italy-based NRI, Joseph Shine, has challenged the provision which prescribes a jail term of up to five years or fine or both, terming it “unjust, illegal and arbitrary and violative of citizens’ fundamental rights.” He questioned the gender bias in the provision drafted by Lord Macaulay in 1860. He also challenged Section 198(2) the Criminal Procedure Code, which allows a husband to bring charges against the man with whom his wife committed adultery.

While hearing on petitions challenging constitution validity of Section 497 IPC, the top court said, “Definitely the matrimonial sanctity aspect is there, but the way the provisions are enacted or made run counter to Article 14 (Right to Equality of the Constitution).”

“If a married man has sexual intercourse with unmarried woman, this is alright. No adultery is made out. But, does it still not affect sanctity of marriage?...Look at the next part, if a married man has sexual intercourse with other married woman with the consent or connivance of her husband then also no offence is made out,” it said.

“On arbitrariness test, the fact that husband’s connivance will not make it a crime is manifestly arbitrary,” the Bench said, adding it had no connection with protecting sanctity of marriage.