Updated: December 9, 2017 10:40:07 am
Thirty-two years ago, his father authored a judgment reaffirming the position in law that in cases of adultery, only the man can be punished and the woman would not be liable even as an abettor. On Friday, the son, Justice D Y Chandrachud, as part of a three-judge bench of the Supreme Court, agreed to take a fresh look at this.
The court issued a notice to the Centre on a public interest litigation challenging the constitutionality of the IPC provision dealing with adultery, saying it appeared to be “archaic” and did not appear to be gender-neutral.
The court was hearing a petition filed by non-resident Keralite Joseph Shine, filed through advocate Suvidutt Sundaram, challenging the constitutionality of Section 497 IPC read with Section 198(2) of the CrPC. Appearing for the petitioner, advocate Kaleeswaram Raj said that Section 497 IPC was unconstitutional as it discriminates against men and violates Article 14, 15 and 21. “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,” he said.
The bench, headed by the Chief Justice of India, said, “Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband… A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. 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.”
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Section 497 IPC says, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and 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.”
Section 198(2) CrPC says that “… no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Initially, the CJI asked Raj, “Why you have not filed it in your name and filed it through a person working in Italy? Because you are afraid?”
When the advocate pointed out that the legal position violated right to equality, the CJI said, “You want the woman to be punished? You want to show chauvinistic attitude?”
Sitting to his left, Justice Chandrachud said the provision which said that it would be an offence only if done without the consent of the husband “put the woman in a position of a commodity”. He added, “As if with his (husband’s) permission, there would not have been any problem.”
Advocate Raj pointed out that the provision was challenged thrice in the apex court in 1954, 1985 and 1988. He drew attention to the 1985 case of Sowmithri Vishnu vs Union of India. In that case, a four-judge bench headed by then CJI Y V Chandrachud while upholding Section 497 said, “…It is commonly accepted that it is the man who is the seducer and not the woman. This position might have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.”
The counsel said the finding that adultery can be committed only by a man and not a woman is not consistent with present-day realities. He also submitted that the Law Commission of India in its 42nd report had recommended the retention of Section 497 in its present form with the modification that even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. But this was not accepted by Parliament.
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