Adultery Law Violates Equality: Top Court

New Delhi: The Supreme Court on Thursday said that the adultery provision in Section 497 of IPC is a ‘peculiar law’ as it treats married men and married women differently.

A bench comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra and led by CJI Dipak Misra, while hearing a petition that seeks to make both men and women equally liable for adultery, was critical of Section 497 that has no problem if a married woman had sexual relationship with a married man with the ‘consent’ of her husband.

The 158-year-old Section 497 of IPC 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 “He 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.”

“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),” noted the bench.

The petitioner, Joseph Shine, an Indian living abroad, has raised the issue that the provision holds married men responsible for adultery but not married women, and that it also treats consenting unmarried adults and consenting married adults differently.

“Both parties in adultery derive the benefit of the act. Despite that, one is treated as a victim and another punished. There is no rationality in it. The provision is a reflection of the times it was drafted,” said CJI Dipak Misra, according to Hindustan Times.

The bench has stated that it will see if the provision fails the test of Article 14. If that happens, it will be declared unconstitutional, it added.