SC Penal Law on Adultery, Husband is Not the Master

“Husband Not the Master”: SC Rules Adultery Not a Criminal Offence

Supreme court, today 27 September pronounced its judgment on a plea challenging the constitutional validity of Section 497, pertaining to the penal law on adultery saying that equality is the governing principle of the system and it’s time to say that the husband is not the master, Live Law reported.

While reading out the judgement, Chief justice of India Dipak Misra said that legal sovereignty of one sex over another is wrong.

A five-judge constitution bench headed by Chief Justice Dipak Misra and consisiting of justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra had reserved their judgment on 8 August, after Additional Solicitor General Pinky Anand, appearing for the Centre concluded her arguments.

The hearing in the case by the bench, which went on for six days, had commenced on 1 August.

WHAT IS ADULTERY?

Section 497 of the Indian Penal Code (IPC) penalises a man and not a married woman for an affair by treating her as a victim and not as an abettor of the offence. However, according to the law, if the husband of the woman gives his consent for the wife to have sexual intercourse with another man, no offence lies, reported.

The Section reads, “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.”

A man convicted of adultery can face a jail term of five years, or fine, or both if he is found guilty of the offence.

WHAT DOES THE PETITIONER ARGUE?

The plea seeking the repeal of Section 497 was filed by Joseph Shine before the Supreme Court in December 2017, represented by Advocates Kaleeswaram Raj and Suvidutt MS, reported Bar & Bench.

Shine argued that this 158-year-old law was discriminatory. He said that the law was unjust, illegal and arbitrary and that it violated the fundamental rights of the citizens. The petitioner has sought to make men and women equally liable for adultery.

WHAT DOES THE GOVERNMENT SAY?

The Centre had favoured retention of penal law on adultery, saying that it is a public wrong which causes mental and physical injury to the spouse, children and the family, reported .

“It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers,” the Centre had said.

WHAT HAS THE COURT SAID?

In January, the apex court had referred to a five-judge Constitution bench the plea challenging the validity of the penal law on adultery. The court had taken a prima facie view that though the criminal law proceeded on “gender neutrality”, the concept was absent in Section 497, according to a report.

While hearing the matter in August this year, the Supreme Court had said that the adultery related provisions in the IPC is anti-women and archaic, reported.

The court had said, “The Supreme Court today, 2 August, said, “The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband wife can be subjected to someone else’s desire. That’s not Indian morality.”

“Each partner of the marriage has equal responsibility. Why should woman take more load than the man? That is the reason we call it archaic,” the court further added.

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