New Delhi, August 2: The Supreme Court Thursday termed as “manifestly arbitrary” a penal provision which required a woman to have her husband’s consent to indulge in adultery with another married man and said it amounted to treating women as “chattel”.
A five-judge Constitution bench headed by Chief Justice Dipak Misra, however, drew the distinction between adultery as a criminal offence and as a civil wrong which has been used as a ground for seeking divorce in matrimonial disputes.
The apex court, which was hearing a petition challenging the constitutional validity of Section 497 (adultery) of the IPC, said, “As far as criminalisation or decriminalisation of adultery as an offence is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by estranged couple in a court of law.”
The bench, which also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was critical of different aspects of section 497 and referred to a part which said 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.
“If there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in which a woman is considered as chattel,” 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),” it said.
Section 497 of the 158-year-old IPC says: “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.”
The bench referred to the submission of the Centre in its affidavit and said the provision was there to save “sanctity of marriage” or “matrimonial ties” and then pointed out inconsistencies in law. “If a married man has sexual intercourse with unmarried woman, this is alright. No adultery is made out. But, does it still not affect sanctity of marriage,” the bench asked.
“Look at the next part, if a married man has sexual intercourse with other married woman with the consent or connivance of her husband then also no offence is made out,” it said. Terming the provision as not being “gender neutral”, it referred to the classical test of “manifest arbitrariness” and “discrimination” under Article 14 (right to equality) to examine the validity of a law.