Constitution Bench to look at adultery law

Henrietta Strickland
January 7, 2018

The Supreme Court on Friday referred to a constitution bench plea challenging the constitutional validity of the law governing adultery which only criminalises a man. Keeping in mind social progression, gender equity and sensitivity, earlier verdicts on this issue have to be revisited, the top court said today. But the SC website showed that the March 10, 1954 judgment (Yusuf Abdul Aziz vs State of Bombay) was rendered by a five-judge bench comprising then CJI M C Mahajan and Justices B K Mukherjea, Vivian Bose, S R Das and Ghulam Hasan. "In such case the wife shall not be punishable as an abettor". This tantamounts to subordination of a woman where the Constitution confers equal status. This provision, prima facie, appears to be quite archaic.

The SC felt it was about time to examine whether affirmative action mandated under Article 15 (3) of the Constitution to benefit women in general could legally and judicially translate into absolving them of prosecution in a crime for which men are punished and women are willing or consensual partners. "When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice", the bench had said.

While IPC Section 498 punishes only men for adultery, the law in the present form is considered patronising towards women. Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies. Section 497 of the Indian Penal Code treats only the man as an offender and the woman as a victim. "Only one party is held liable for the criminal offence", Chief Justice, Dipak Misra had observed at the last hearing. He said "when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability". This not only perpetuates the idea of women as passive objects, but also that they are properties of their husbands once married.

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.

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.

The petition was filed by a non-resident Keralite Joseph Shine, through advocate Suvidutt Sundaram and challenged the constitutionality of Section 497 of IPC read with Section 198 (2) of CrPC.

Other reports by Click Lancashire

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