While examining the constitutional validity of Section 497 of the Indian Penal Code which deals with adultery, the Supreme Court Thursday observed that prima facie it was violative of the fundamental right to equality. A five-judge bench, headed by CJI Dipak Misra, is hearing a petition challenging the provision on the ground that it punishes only married men and not married women. The bench also comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
The Supreme Court also did not agree with the Centre’s submission that Section 497 was to maintain the sanctity of marriage.
During the hearing, Justice Chandrachud said that applying the doctrine of severability in this case would amount to making the offence stronger than what was intended.
He also observed that the law assumes that sexual intercourse outside marriage leads to the end of a marriage, without considering that adultery could be the consequence of the breakdown of the marriage.
According to Section 497, a man who has consensual sex with the wife of another man, without the consent or connivance of that man, is guilty 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 states.
While the petitioner challenged this on grounds that it doesn’t apply to married women, the Supreme Court stated that it will not touch the law. It is, however, looking at whether adultery should remain a criminal offence on the basis of Article 14 (equality before law). The petitioner today told the court that it was not asking for the law to be made gender neutral, but for this to be grounds to strike down Section 497.
Justice Chandrachud, today, also pointing out that according to the provision, there is no offence if the husband connives with another man. To this, Justice Malhotra said it amounts to treating the wives as “chattel”.