NEW DELHI: The Indian Penal Code's provision on adultery violates the fundamental Right to Equality as it treats married men and women differently, the Supreme Court said today.
Terming IPC's Section 497 "manifestly arbitrary", a five-judge Constitution bench headed by Chief Justice Dipak Misra said it treats a married woman as "chattel" because her relationship with a married man depends on the "consent or connivance of her husband".
The bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, which is hearing a petition challenging the constitutional validity of Section 497, was critical of a part of the provision stating that no offence of adultery is made out if a married woman enters into a sexual relationship with a married man with the consent of her husband.
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."
"Definitely the matrimonial sanctity aspect is there, but the way the provisions are enacted or made run counter to Article 14 (Right to Equality of the Constitution)," the court said.
The bench added that it would see whether the provision can stand the test of the Right to Equality on grounds like "discretion and manifest arbitrariness".
Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, an Indian living in Italy, referred to various facets of Section 497 and said the provision does not apply to a consenting sexual relationship between two unmarried adults and it treats married men and women differently with regard to their prosecution for adultery.
He said married men can be prosecuted for the offence of adultery but this is not the case with married women and referred to various inconsistencies in the section.
The apex court had yesterday commenced hearing on pleas seeking quashing of the adultery provision in the IPC on the ground that it only punishes married men for having extra-marital sexual relations with a married woman.
On January 5, the apex court referred to a five-judge Constitution bench the plea challenging the validity of the penal law on adultery.
The court had taken a prima facie view that though the criminal law proceeds on "gender neutrality", the concept was absent in Section 497.
The apex court had also referred to its 1954 judgment, delivered by a five-judge bench, that had upheld the validity of Section 497 saying that it did not violate fundamental rights like Right to Equality.
The top court had referred to societal transformation and concepts of "gender equity" and "gender sensitivity" and said affirmative rights have to be conferred upon women and earlier judgments needed to be examined by a larger Constitution bench.
The top court had earlier observed that if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of Right to Equality.
It had termed the provision "prima facie archaic" and said it was "tantamount to subordination of a woman where the Constitution confers equal status".