A Supreme Court Constitution bench, which started hearing pleas challenging Section 497 of the IPC which makes adultery a punishable offence for men, on Wednesday wondered why it should be an offence at all.
“There were already civil liabilities and consequences of adultery. But making it an offence only for men is actually hit by Article 14 (right to equality)… Now the issue is why adultery should be a crime at all,” the bench headed by Chief Justice of India Dipak Misra observed. The bench also comprises Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said.
Section 497 IPC says that 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 which may extend to five years, or with fine, or with both. It also says the woman involved can’t be punished.
This has been challenged by an NRI — Joseph Shine — who term 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 challenged Section 198(2) the CrPC which allows a husband to bring charges against the man with whom his wife committed adultery.
The bench noted that the question was no more limited to making it a gender-neutral crime.
Appearing for the petitioner, senior advocate Kaleeswaram Raj said the simple question was whether a man can be sent to jail on the ground that he had consensual sex with the wife of another man.
At the outset, the Bench said it would refer the issue to a seven-judge Bench as there was already a verdict by a five-judge Bench upholding the validity of Section 497. But senior counsel Meenakshi Arora said the issue before the court in the earlier case was if women should also be punished. The legality of the provision was not challenged earlier, she submitted following which the court said it will decide the question.