Adultery is a crime, we all know that. But why is that the women are seen as the victims rather than an accused?
The Supreme Court on Friday admitted a PIL in which the petitioner has urged the court to examine a colonial provision on adultery contained in Section 497 of the IPC. The archaic provision treats only the man as an offender and not the married woman with whom he has had consensual sex, even though she is an equal partner in the act.
The 3-judge Bench headed by Chief Justice Dipak Misra issued a notice to the Home Ministry on the petition of Joseph Shine of Kozhikode which says that the provision patronizes and commodifies women as it always treats the married woman involved in adultery as a “victim.” This goes against the principle of gender justice and the constitutional mandate of the right to equality.
Section 497 under challenge reads: “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.” It also stipulates that only the husband or a person in whose care he had left his wife can file a complaint under this section.
The court decided to examine two aspects of this section. One, is the woman the “property” of her husband or a passive object to be always portrayed as a victim? Two, why the crime ceases if the woman’s husband connives or consents to an act of adultery by a person with his wife?
The adultery case was last examined by the Apex Court six years ago but the then Bench of Justices Aftab Alam and R M Lodha preferred to go by the law as it stands, ruling that only a man can be proceeded against and punished for adultery and not the wife, even as an abettor.
A woman from Andhra Pradesh had challenged the registration of an adultery case against her on a complaint by the wife of another person that he was having illicit relations with her.
In its ruling on December 4, 2011, the then Bench had said: “Section 497 of the Indian Penal Code [which deals with adultery] is currently under criticism from certain quarters for showing a strong gender bias, for it makes the position of a married woman almost as a property of her husband. But in terms of the law, as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for … adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor.”
In the instant case for admission, the petitioner’s lawyers Kaleeswaram Raj and Suvidutt M.S argued that the penal section was framed at a time when women were considered a man’s property which is against the Constitution that confers equal status to man and woman. While issuing the notice to the Centre, the Chief Justice recorded in the order that the time has come when society has to realize that a woman is equal to her husband in every respect.
Justice D.Y. Chandrachud asked whether a law that “assumes a patronizing attitude towards women” does not amount to a violation of woman’s fundamental right against gender discrimination under Article 15 of the Constitution. On the law allowing a woman to enter into an adulterous relationship if she has her husband’s consent, the Judge wondered: “Does this relegate her to the level of a commodity? A serious issue.’’
Terming the provision on the adultery as “quite archaic” requiring a review, the court put on record that when society progresses, rights are confirmed and a new generation of thoughts should spring forth.
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