On 8/12/2017 Supreme Court dealt with Section 497 of Indian Penal Code which makes adultery punishable for man but not for married woman. The bench was headed by the Chief Justice of India Dipak Misra. Justice Dhananjaya Yeshwant Chandrachud and Justice Ajay Manikrao Khanwilkar were other members of the bench.
IPC 497 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, and 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.”
Section 198(2) in The Code Of Criminal Procedure, 1973 says “(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
The court was hearing a public interest litigation petition, challenging the constitutionality of Section 497 IPC read with Section 198(2) of the CrPC. Appearing for the petitioner, advocate for the petitioner said that Section 497 IPC was unconstitutional as it discriminates against men and violates Article 14, 15 and 21. “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,” he said.
Justice Chandrachud said the provision which said that it would be an offence only if done without the consent of the husband “put the woman in a position of a commodity”. He added, “As if with his permission, there would not have been any problem.”
The bench, headed by the Chief Justice of India, said, “Ordinarily, the criminal law proceeds on gender neutrality but in this provision, 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… 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 issued a notice to the Centre on the constitutionality of the IPC provision dealing with adultery, saying it appeared to be “archaic” and did not appear to be gender-neutral.
Punishing a man for a crime and not punishing the woman for the same crime is sexual discrimination. Feminists have not argued against IPC 497. They have not demanded equality with men in punishment for adultery. They have not said this is commodification of woman, it reduced woman to husband’s property. There is no punishment for adultery when a married man has sex with an unmarried woman.
Adultery is a ground for divorce. Many married women when caught in adultery say they were raped. Law Commission of India in its 42nd report had recommended the retention of Section 497 with the modification that the wife, who commits adultery, should be made punishable for adultery. Parliament rejected the recommendation.
Either adultery should be a crime for both man and woman or it should not be a crime for any of them.