Thu. Mar 28th, 2024

On August 2, Supreme Court while hearing pleas on quashing Section 497 which deems adultery as a criminal offense declared it “manifestly arbitrary”.

A five-judge bench headed by Chief Justice of India Dipak Misra and constituting of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said that the provision is more discriminatory towards the woman as it treats her as the “chattel” of man. Adultery is not a crime if the sexual relations have the “consent or connivance of her husband”.

Section 497 states, “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, and 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.”

Justice Nariman said in the court, “Requirement of husband’s consent or connivance makes it appear as if a woman is chattel or property of the husband. This renders the provision manifestly arbitrary. By treating women as chattel of husbands, the section also violates their dignity, which is part of the right to life guaranteed under Article 21.”

CJI Misra declared Section 497 as “archaic” and “anti-women”. He said, “It is typically an archaic provision. While it appears to be pro-women by protecting them against prosecution, it actually is anti-women as it treats them as husband’s chattel. Where did they get this concept of consent of husband for a woman to have intercourse with another married man?”

Senior advocates Meenakshi Arora, Kaleeswaram Raj and Sunil Fernandes challenged the Centre’s argument that decriminalizing adultery will have adverse effects on the sanctity of marriage. They argued that the provision does not punish a married man when he commits adultery with an unmarried woman, widow or transgender.

The bench said, “Definitely the matrimonial sanctity aspect is there, but the way the provisions are enacted or made run counter to Article 14 (Right to Equality of the Constitution).”

The apex court has been hearing pleas to decriminalize adultery as it only punishes the man whereas the consenting woman is excused of the “crime”; the woman is regarded as the “property” of he husband.

CJI Misra said, “If we hold Section 497 as unconstitutional, then the section goes. But our concept of the sanctity of marriage is very different from that in the US. Striking down Section 497 will not mean the SC gave a license to married men and women to have licentious behavior and conferred a right to fall in love outside wedlock. Adultery will continue to be a gender-neutral ground for divorce and that should be the restriction on a married couple’s sexual freedom.”

The Centre defending Section 497 will present its arguments on Tuesday.

By isha

Leave a Reply

Your email address will not be published. Required fields are marked *