Supreme Court calls adultery provision in IPC a 'peculiar law', says it fails test of arbitrariness

The Supreme Court on Thursday resumed hearing a petition challenging the constitutionality of criminalisation of adultery under Section 497 of the Indian Penal Code (IPC) and an inherent gender bias in the provision. A Constitution Bench headed by Chief Justice Dipak Misra, and comprising RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra resumed hearing the petition, one day after it said it won't touch the law to make it an offence for women to indulge in adultery. [caption id=“attachment_4782881” align=“alignleft” width=“380”]  Representational image. PTI[/caption] The petition seeks to make men and women equally liable for adultery, but the bench said that to allow sexual intercourse with the consent of a woman’s husband is “an indication of treating the wife as husband’s chattel”,  Live Law reported. “This is absurd!” Justice Indu Malhotra exclaimed. “Definitely the matrimonial sanctity aspect is there, but the way the provisions is enacted or made runs counter to Article 14 (Right to equality of the Constitution),” said the bench. “Both parties in adultery derive the benefit of the act. Despite that, one is treated as a victim and another punished. There is no rationality in it. The provision is a reflection of the times it was drafted,” Chief Justice Dipak Misra said, according to Hindustan Times. Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, an Indian who is living in Italy, said that the law should be struck down, calling the law discriminatory. “If Section 497 cannot be read down or made gender neutral, it has to be struck down,” according to Bar and Bench. He 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 the offence of adultery. The bench called the law arbitrary, questioning the need for the wife to seek the husband’s consent before having sexual intercourse with another man. It stated that it failed the test of arbitrariness. “As it says that sex with another’s wife will not be offence if its done with the consent or connivance of that woman’s husband,  is manifestly arbitrary,” said Rohinton Nariman J, Bar and Bench reported. Section 497 of the 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.” “He 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,” the section says. On Wednesday, the bench observed that if section 497 fails the test of Article 14, it would be declared unconstitutional. It said adultery is also a ground of divorce and apart from other civil remedies under various statutes. “So, we have to examine whether the adultery provision requires to remain a criminal offence at all,” the bench said. With inputs from PTI