The Supreme Court on Friday sought the Central government's response on a petition challenging constitutional validity of Section 497 of IPC, providing for prosecution of man in adulterous relationship with a married woman and lets off the woman who is otherwise an equal participant in the extramarital relationship.
PIL petitioner Joseph Shine has also challenged Section 198 of the Code of Criminal Procedure that allows the aggrieved husband of the married woman in adulterous relationship to file a complaint and not to the aggrieved wife of the man in adulterous relationship.
He has questioned the validity of these sections on the grounds of being violative of the Constitution's Articles 14 (Equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).
Observing that woman is equal to man in every field, the bench of Chief Justice Dipak Misra, Justice A.M.Khanwilkar and Justice D.Y.Chandrachud said that the provision "appears to be quite archaic".
"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 court said in its order.
Noting that the offence is committed by both, by the married woman and the man she is in a relationship with, the court said that "one is liable for the criminal offence but the other is absolved".
"It seems to be based on a societal presumption," the court said in its order.
"Ordinarily the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent," the court said further noting that "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".
Referring to the language of IPC's Section 497, the court, in its order, said that it is perceivable from the language employed in the section that the "fulcrum of the offence is destroyed" once the consent or the connivance of the husband is established.
Viewed from the said scenario, the court in its order said, "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 tantamount to subordination of a woman where the Constitution confers equal status".
The peitioner has also sought the reconsideration of three earlier judgments of the top court upholding the existing provision of law by holding woman as a victim and a declaration of Section 497 of the IPC and Section 198(2) CrPC as unconstitutional.
The court gave the Central government four weeks time to respond.