The Supreme Court today agreed to examine the constitutional validity of a colonial era law on adultery which punishes only the man even though the woman, with whom he has had consensual sex, may be an equal partner.
The top court also said if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of right to equality.
Section 497 of the Indian Penal Code states that "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".
The offence of adultery entails punishment of up to five years or with fine or with both. However, in such cases, the wife shall not be punishable as an abettor.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud termed the provision a "prima facie archaic" and said 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. 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," the bench said.
It said it would examine the constitutional validity of the 157-year-old provision and issued notice to the Centre, seeking its response in four weeks.
The court said it needs to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.
Secondly, the bench said it will examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.
"Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for criminal offence but the other is absolved," it said.
The top court said the provision seems to be based on a "societal presumption" and ordinarily, the criminal law proceeds on gender neutrality but in this case, "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," the bench said.
It said when the provision is perceived from the language employed in the section, then 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", it said.
During the hearing, Justice Chandrachud observed that at present, the law assumes a "patronising attitude" towards the woman and treats her as a victim which amounts to violation of a fundamental right and gender discrimination.
Advocates Kaleeswaram Raj and Suvidutt M S, appearing for petitioner Joseph Shine, an Indian citizen but residing in Italy, said section 497 was "prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of".
He said "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".
The lawyer said the provision also indirectly discriminates against women by holding an erroneous presumption that they are the property of men.
"This is further evidenced by the fact that if adultery is engaged with the consent of the husband of the woman, then such act seizes to be an offence punishable under the code," he told the bench.
He said the said provisions have been treated to be constitutionally valid in three verdicts of the apex court in 1954, 1985 and in 1988.
Raj said that petitioner has also challenged the Section 198(2) of CrPC, which deals with prosecution for offences against marriages.