SC to revisit adultery law

R. Balaji, TT, New Delhi: The law making men alone prosecutable for adultery and always treating the women involved as victims appears prima facie "archaic" and even conducive to "subordination" of women, the Supreme Court has said, deciding to scrutinise provisions it had upheld thrice in the past six decades.

The court will examine the constitutional validity of:

• Section 497 of the Indian Penal Code, which makes it a criminal offence for a man to have a sexual relationship with a married woman but grants immunity to the woman involved; and

• Section 198(2) of the Criminal Procedure Code, which denies a wife the right to prosecute her adulterous husband, reserving this power only for the husband of the woman involved in the relationship. (A married man who has an affair with an unmarried woman is not prosecutable under the existing adultery law.)

Petitioner Joseph Shine, a Keralite settled in Italy, wants the court to scrap both laws and thereby decriminalise consensual sex between adults --- a stand with a bearing on the law that criminalises all homosexual acts, to which references were made in court on Friday.

Joseph has argued that Section 497 discriminates against men: "When sexual intercourse takes place with the consent of both parties, there is no good reason for excluding one party from the liability."

Further, "it also indirectly discriminates against women" by holding them to be the "property" of their husbands, for it does not consider adultery an offence if done "with the consent of the husband of the woman".

Section 198(2) discriminates against women by denying aggrieved wives the right to prosecute, Joseph has added.

Each time these laws were challenged before --- in 1954, 1985 and 1988 --- the apex court had refused to quash the provisions, saying a woman in an adulterous relationship was usually the victim and the man the seducer.

On Friday, too, the bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud was initially disinclined to entertain the petition.

However, counsel Kaleeswaram Raj and Suvidutt M.S. contended that the matter could no longer be swept under the carpet. They cited the recent nine-judge verdict upholding the right to privacy and argued that sex between consenting adults should not be a criminal offence.

After consultations among the judges, the bench issued a notice to the Centre to file its reply within four weeks.

Later at night, the court uploaded an order that explained its decision. Excerpts:

"When an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems... based on a societal presumption.

"Ordinarily, criminal law proceeds on gender neutrality but in this provision... the said concept is absent. 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.

"Quite apart from that, it is perceivable from the language employed in the section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established.... The provision really creates a dent on the individual independent identity of a woman.... This (is) tantamount to subordination of a woman where the Constitution confers equal status.

"A time has come when society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When society progresses and rights are conferred, (a) new generation of thoughts spring(s), and that is why we are inclined to issue notice."

Joseph has cited the 42nd Law Commission report, which recommended removing the immunity granted to women in adulterous relationships, and reducing the jail term for the offence from five to two years.

The petition argues that the impugned laws violate the fundamental rights to equality, life and personal liberty, and non-discrimination on ground of gender.