Supreme Court to re examine the validity of offence of adultery

The Supreme Court on Friday issued a notice to the Centre on a PIL challenging the constitutional validity of Section 497 IPC. The PIL was filed by a Kerala native, Joseph Shine, claiming that the said provision is gender biased and is violative of the Fundamental Right to equality. A bench headed by CJI Dipak Misra also comprising of A M Khanwilkar and D Y Chandrachud, agreed to examine the validity of the criminal offence of adultery as provided under Section 497 of IPC. The Supreme Court decided to look into two key aspects of the penal provision. Firstly, why does Section 497 provides punishment only for the man and treats woman as a victim although she is an equal partner in the offence and secondly, it shall examine the exception to the offence, which provides that if the husband gives his consent for the adulterous act of his wife and another married man, then it shall not be treated as an offence under the section. The Supreme Court further said that the said provision creates a dent on the identity of a woman as when the act of adultery is in itself an affirmative act by both the parties then it becomes absolutely gender biased to treat the man as an offender. Section 497 provides punishment for a man who has sexual intercourse with a woman whom he knows or has a reason to believe to be the wife of another man and such act is committed without the consent of that other man, and holds him guilty of the offence of adultery. The court stated that the exception to the section destroys the whole fulcrum of offence. Advocates K Raj and S Sundaram appearing on behalf of the petitioner told the court that the said provision is violative of Article 14, 15 and 21 as it treats only the man as the offender and not the woman. The petition also highlighted the fact that countries like Uganda and South Korea have long back removed the provisions of adultery and India is still following the colonial penal provision. The section also gives the right to the husband of the woman to decide what is an offence and what is not, relegating the woman to a mere commodity, hence this is a gender biased provision. The decision of the Supreme Court to re- examine Section 497 of IPC, reflects the idea of the court that the time has come to remove the archaic provision, to uphold the Fundamental principle of equality and for the progressive development of the society. This is not the first time when the constitutional validity of the offence is being challenged. In 1985, a similar argument was made by Sowmithri Vishnu whose husband wanted divorce from her on the ground of adultery. She contended that the section clearly discriminates on the basis of gender, as it only gives the husband the right to prosecute another man, however, no similar rights are given to the wife to prosecute the woman with whom her husband committed adultery. The section also does not treat make the act of sexual intercourse of a husband with an unmarried woman as an offence.However, a three-judge bench rejected all these arguments. Similarly, in Yusuf Abdul Aziz case of 1985, the court refused to treat the section as violative of the Constitution and held that the said provision was made keeping in mind Article 15(3) of the Constitution. Hence, it has become very important to re examine the validity of the provision.