SC issues notice to Centre questioning gender discrimination in adultery law

In the hearing of a petition challenging Section 497 (Adultery) of the Indian Penal Code (IPC), the Supreme Court on Friday issued notice to the Centre 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.

Under the law, the offence of adultery is criminalised, but only the man is liable for the punishment.

Further, if the husband of the woman gives his consent for sexual intercourse with another man, the law does not recognise it as an offence.

Advocate Kaleeswaram Raj along with his colleague Suvidutt Sundaram appeared before the apex court on behalf of petitioner Joseph Shine.

"It (Section 497) has a curious provision in the sense that it proposes to punish only the men involved in the act, and not the women. Exonerating the woman who is allegedly involved in the very same activity is violative of Article 14 of the constitution which guarantees equality before law and equal protection of the law," Raj told ANI.

"We have also challenged the text of the IPC provision that says if a husband's consent is not given then only it is an offense, so we have raised that it is a male chauvinistic provision in the sense that it gives a free hand to the husband to determine if whatever is happening is an offense or not. This is not a gender neutral provision and constitution is always gender neutral," Raj added.

He also informed that the petition also sought to invalidate 198 (2) of the Code of Criminal Procedure (CrPC) that states only a husband can file the complaint, that too against the man but not his wife.

"In such a way the provision is engrafted, that if husband of another poor woman is involved in the offence, then that woman doesn't have any legal remedy at all," Raj said.

The top court prima-facie accepted the contention saying that the provision is not gender-neutral.

"In today's order, the court has also said that the woman cannot be commoditised, and if an offence is committed, it cannot depend upon the existence or otherwise of a consent by the husband. The husband cannot treat the woman any longer as a commodity. That contention has also been accepted by the Supreme Court," told the advocate.

The court also said that all the judgments hitherto indicating earlier will have to be necessarily revisited.

Advocate Sundaram informed that a report presented by Law commission of India 1971 and Malimath committee report in 2003 also recommended that section 497 should be removed.

Sundaram said that the law doesn't hold relevance in modern times, and added, "If we compare it to foreign countries like Uganda, Guatemala, South Korea they have removed the provision of adultery. Only in India, we are still carrying the IPC drafted by Macaulay in 1860 and the provision about adultery.