Supreme Court: Agreeing to hear the petition that sought for examining Section 497 of Penal Code, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to Central Government asking why a married woman, who is equally liable for the offence of adultery with a married man who is not her husband, be not punished along with the man.
Section 497 IPC, that deals with the offence of adultery, says that a man who has sexual intercourse with the wife of another man, without that man’s consent, will be punished for the offence of adultery. The said provision, however, expressly states that the woman will not be punished for the offence.
The Court noticed that the provision grants relief to the wife by treating her as a victim. Hence, when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. The Court said that the provision:
“seems to be based on a societal presumption. 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.”
Not only this, the Court also noticed that the provision creates a dent on the individual identity of woman as:
“the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field.”
Noticing that the provision, prima facie, appears to be quite archaic, the Court issued notice to Centre returnable within 4 weeks. [Joseph Shine v. Union of India, 2017 SCC OnLine SC 1447, order dated 08.12.2017]
Such provisions, stand and view – both of judiciary and common public – must be corrected. Both man (husband) and woman (wife) have equal responsibility to bind with faithfulness to each of their counterpart. If anyone of these violates that responsibility he/she is culprit alike and thereby committing a crime of adultery and immorality.
Under S 497 IPC for constituting the offence of adultery, it is immaterial whether the man is married. All that is required is that the woman must be the wife of the man without whose consent she had sexual intercourse with another man. Thus, even an unmarried man can commit adultery. Having said that, it is time that a reasoned debate takes place on the issue of decriminalising the so called act of adultery (which is not an offence in some countries) in view of the changing societal attitudes towards heterosexual relationships in general and marriage as an institution in particular. With premarital and extramarital sexual relationships becoming increasingly common it can be reasonably said that the current social milieu is far removed from the one prevalent in the year1860 when IPC was brought into force, and at which time, the institution of marriage was, above all, held to be sacrosanct.
Under S 497 IPC for constituting the offence of adultery, it is immaterial whether the man is married. All that is required is that the woman must be the wife of the man without whose consent she had sexual intercourse with another man. Thus, even an unmarried man can commit adultery. Having said that, it is time that a reasoned debate takes place on the issue of decriminalising the so called act of adultery(which is not an offence in some countries) in view of the changing societal attitudes towards heterosexual relationships in general and marriage as an institution in particular. With premarital and extramarital sexual relationships becoming increasingly common it can be reasonably said that the current social milieu is far removed from the one prevalent in the year1860 when IPC was brought into force, and at which time, the institution of marriage was, above all, held to be sacrosanct.