The law that deals with the cases of adultery have different punishment for men and women which is against the law of equality observed by the Supreme Court.
The Supreme Court on Thursday said matrimonial sanctity is an issue but the penal provision on adultery is apparently violative of the right to equality under the Constitution as it treats married men and married women differently.
A five-judge Constitution bench headed by Chief Justice Dipak Misra, and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra observed that there is no rational basis in the adultery law to punish only the man, treating him as an accused and not the woman by treating her as a victim when both the partners derive equal benefit.
Section 497 of the 158-year-old 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.”
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At the outset, the CJI observed “if sexual freedom is a fundamental right then why should adultery remain a criminal law for man alone. If adultery has its basis in a woman being a property of man then Section 497 is discriminatory.”
The bench termed this aspect of Section 497 “manifestly arbitrary” and said it treated married women as “chattel” on the ground that their relationship with other married persons depends on the “consent or connivance of her husband”.
“Definitely the matrimonial sanctity aspect is there, but the way the provisions is enacted or made runs counter to Article 14 (Right to equality of the Constitution),” said the bench.
The bench said it would see whether the provision can stand the test of the right to equality on grounds like “discretion and manifest arbitrariness”.
Lawyer Kaleeswaram Raj, who represented petitioner Joseph Shine, an Indian living in Italy, referred to various facets of Section 497 and said the provision does not apply to a consenting sexual relationship between two unmarried adults and it treats married men and women differently with regard to their prosecution for the offence of adultery.
He said married men can be prosecuted for the offence of adultery, but this is not the case with married women and referred to various inconsistencies in the section.
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