Punishing Only Men For Adultery Violates ‘Right To Equality’: SC

Legal experts have opined time and again that Indian laws pertaining to family are in urgent need of an overhaul.

(Photo: iStock/Altered by The Quint)

The Supreme Court on Thursday, 2 August, said matrimonial sanctity is an issue but the penal provision on adultery is apparently violative of the right to equality under the Constitution as it treats married men and married women differently, reported PTI.

A five-judge Constitution bench headed by Chief Justice Dipak Misra, which is hearing a petition challenging the constitutional validity of Section 497 of the Indian Penal Code, was also critical of a part of the provision stating that no offence of adultery is made out if a married woman enters into a sexual relationship with a married man with the consent of her husband.

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.

According to Section 497 of the 158-year-old IPC

The bench termed this aspect of Section 497 "manifestly arbitrary" and said it treated married women as "chattel" on the ground that their relationship with other married persons depends on the "consent or connivance of her husband", according to PTI.

“Definitely the matrimonial sanctity aspect is there, but the way the provisions is enacted or made runs counter to Article 14 (Right to equality of the Constitution)," said the bench also comprising Justices R F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Won’t Make Adultery a Gender Neutral Crime: SC

Earlier on Wednesday, 1 August, the Supreme Court indicated that it won’t make adultery a gender neutral crime and would examine whether the law violates an individual’s right to equality, News18 reported.

Under the current law, a woman can neither be charged with adultery for consenting to the sex, nor can a woman file a case of adultery against her spouse or his illicit partner.

The centre, on 11 July, opposed a plea to decriminalise adultery in India, saying striking down Section 497 of the Indian Penal Code, which penalises only men who are found engaging in adultery, would be "detrimental" to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage, IANS reported.

The government, in an affidavit filed before the apex court, has stated that Section 497 "supports, safeguards and protects the institution of marriage".

(With inputs from PTI, News18 and IANS)