Law discriminating between persons on basis of sex liable to be struck down: Justice Malhotra

A law which discriminates between persons on the basis of sex alone and deprives women the right to prosecute is not gender-neutral and liable to be struck down, the Supreme Court judge Justice Indu Malhotra said Thursday.

Justice Malhotra was the lone woman judge in the five-judge Constitution bench which unanimously held that Section 497 of the Indian Penal Code, dealing with the offence of adultry, as unconstitutional and struck down the penal provision.

"The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by," she said.

"A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is therefore, no justification for continuance of Section 497 of the IPC as framed in 1860, to remain on the statute book," she added.

Section 497 of the 158-year-old IPC says: "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."