Why is adultery an offence for men and not women, plea raises question in SC

Bhadra Sinha, HT, 8 December 2017, New Delhi: Why should only a man and not a woman involved in an adulterous relationship be criminally prosecuted?

This question was raised before the Supreme Court on Friday which agreed with the petitioner that section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Code of Criminal Procedure (CrPC) were “archaic” and “gender discriminatory”.

The three-judge bench led by Chief Justice of India, Dipak Misra, issued a notice to the government on the public interest litigation (PIL) that wants the two sections to be struck down and declared unconstitutional.

Thrice, in 1954, 1985 and 1988, the top court has dismissed petitions seeking similar relief.

Section 497 of IPC, read with the CrPc provision, makes adultery an offence. But only the man involved is liable to be punished, provided the husband of the woman with whom he is in a relationship, complains.

If the husband doesn’t, then no offence is made out.

“Ordinarily, the criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said concept is absent,” the Supreme Court said. “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?”

The bench noted that the provision relieves the woman of any liability. “It grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence, but the other is absolved. It seems to be based on a societal presumption.”

On the fact that a man’s consent does not lead to the filing of the criminal case, the bench said: “She becomes a victim when emphasis is On the fact that a man’s consent does not lead to the filing of the criminal case, the bench said: “She becomes a victim when emphasis is laid on connivance or consent of husband.

This would tantamount to subordination of a woman who is conferred equal status under the Constitution. The time has come when a woman is equal to man in every field.”

“When the society progresses and the rights are conferred, new generation of thoughts spring, and that is why, we are inclined to issue notice,” it said.

Italy-based Indian Joseph Shine (40) is the petitioner in the case. Born and brought up in Kerala, Shine is a businessman and lives in Trento city. A “public-spirited” person, he has filed PILs in the Kerala High Court in the past.

This is his second PIL before the top court.

The first one dealt with the issue of whether politicians holding constitutional post

could make comments on a pending investigation in criminal case.

Shine’s advocates Kaleeswaram Raj and Suvidutt argued that when sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability.

Initially, the CJI was not ready to entertain the PIL and asked the lawyer why he didn’t file the petition in his name and why it was done through a person working in Italy. “Are you afraid?” the CJI asked.

“You want the woman to be punished? You want to show chauvinistic attitude?” he asked him.

However, after having a discussion with his colleagues, he agreed to issue the notice.

Interestingly, Justice DY Chandrachud is part of the bench. The 1985 SC ruling that refused to accept a similar petition was authored by his father, Justice YV Chandrachud.