While hearing a plea against Section 497 of the Indian Penal Code (IPC), which makes adultery a punishable offence for men, the five-judge Constitution Bench of Supreme Court on Thursday, Aug 2, termed IPC's Section 497 as "manifestly arbitrary".
The apex court observed that it treats a married woman as a "chattel" since her relationship with a married man entirely depends on her consent or husband's connivance.
The plea was filed by a businessman, Joseph Shine, who is an Indian but lives in Italy.
The Section 497 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 comprised of CJI Misra, Justice D. Y. Chandrachud, Justice Rohinton Fali Nariman, Justice Indu Malhotra and Justice A. M. Khanwilkar considered a fact that punishing only a man for adultery is actually hit by Article 14. The court said that this aspect of the section treats men and women differently.
"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)," the bench added.
The bench further added that it will see if the provision can stand the test on Right to Equality on grounds like "discretion and manifest arbitrariness".
It also criticised Section 497 saying, if a woman enters into a sexual intercourse with a married man then no offence is made against her.
According to the Times of India, the judges pointed at the submission of the Centre in its affidavit, which says provisions mentioned in Section 497 were meant to save "matrimonial ties" or "sanctity of marriage".
In order to clear that the provision was not 'gender-neutral', the bench compared it to the offence of bigamy under IPC's Section 494, and observed that unlike Section 497, it punishes both husband and wife for an offence.
Chief Justice of India Dipak Misra held that men and women are equally liable for an act of adultery.
"Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic," the Supreme Court said, reports India Today.
The stand of petitioner's advocate
The petitioner's advocate Kaleeswaram Raj made his stand clear in the court by stating that the provision should be struck down.
He further referred to several facets of Section 497 and said that a woman is unable to register a complaint against her husband if he has sexual intercourse with another woman or vice-versa. As the core structure of Hindu society is set on patriarchal norms, the provision was made to allow a man's control over his wife's sexuality and not "to protect bodily integrity of women", the advocate said.
Moreover, the court would hear a plea again on August 7.