The Centre on Wednesday filed an affidavit opposing a Public Interest Litigtion (PIL) that seeks to make men and women equally liable for the crime of adultery under Section 497 of the Indian Penal Code, media reports said.
The central government has apparently taken the view that the law protects the institution of marriage and diluting it would be detrimental to the matrimonial bond, The Times of India reported.
The archaic law in its present form discriminates against both, men and women. It states: "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."
In layman's lingo, it seeks to criminalise consensual sex between a man and the wife of another man. However, under this neither the woman can be charged with adultery despite the sexual act being consensual, nor can a woman file a case of adultery against her spouse or against the woman with whom her husband slept, Live Law argues. Only an aggrieved husband, or any person in whose 'care' a husband has left his wife, can file a case under sections 497 and 498.
Moreover, the law stands problematic on another account. According to The Indian Express, the law remains quiet on sexual relations with a widow, sex worker or an unmarried woman/man. According to it, only sexual intercourse with a married woman would amount to adultery. This further hampers women's rights to access the judicial system against an adulterous husband.
Besides this, the language of the law is also deeply parochial indicating that the woman is being seen as a passive object, not unlike property that can be "enticed" or "taken away". As this Firstpost article argues, this law disregards women's sexual choices and agency and treats the husband as the primary aggrieved party even in a case of rape.
Last year in December, the Supreme Court had agreed to admit a PIL filed by Jospeh Shine, who challenged the constitutionality of the law and sought to know why a man alone, and not the consenting woman should be hauled up by law. Shine had 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 an 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).
A three-judge bench headed by Chief Justice Dipak Misra had referred the petition to a five-judge Constitutional bench, admitting that the law does seem to be 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".
With inputs from agencies
Updated Date: Jul 11, 2018 17:51 PM