In adultery woman equally involved so why punish only man: Supreme Court

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The apex court rules if sexual freedom is a fundamental right then why should adultery remain a criminal law for man alone

A Constitution Bench of the SC rules that adultery law reduces woman into a chattel; she is equally involved in the adultery-act

The Hush Post: In a landmark observation, the Supreme Court has ruled that in the act of adultery woman is equally involved so why to punish the only man. The court said that there is no rational basis in the adultery law to punish only the man, treating him as an accused and not the woman by treating her as a victim when both the partners derive equal benefit.

A Constitution Bench of the Supreme Court consisting of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Kanwilkar and DY Chandrachud made this preliminary observation while hearing petitions challenging the validity of IPC Section 497 punishing only the man in adultery cases, a report said.

CJI Dipak Misra observed: “If sexual freedom is a fundamental right then why should adultery remain a criminal law for man alone. If adultery has its basis in woman being a property of man then Section 497 is discriminatory.”

Justice Chandrachud told counsel Kaleeswaram Raj, appearing for petitioner Joseph Shine: “Each partner to a marriage is equally responsible to keep the sanctity of marriage intact. If a married woman has sexual intercourse with a married man other than her husband, why should the man alone be punished when woman too is equal partner to the crime? Such a distinction appears manifestly arbitrary.”

CJI Dipak Misra said: “It is absurd to treat a woman as a chattel. Adultery law reduces woman into a chattel. There is no crime if a woman has an extramarital relationship with the consent or connivance of her husband. Are women the chattels of their husbands?” the CJI asked.  Justice Nariman wondered how such a provision was drafted in the Indian Penal Code (IPC).

Section 497 IPC 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 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.”

CJI Misra said: “This provision grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption.”

The counsel submitted that the Supreme Court had upheld this provision in three judgments, yet it needed a re-look in the context of developments in the society, the report said.

Counsel Kaleeswaram Raj argued that Section 497 of the Indian Penal Code (IPC) is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution. He argued that when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability, it was reported

The said discrimination is against the true scope and nature of Article 14. He said Section 497 of the IPC couldn’t be interpreted as a beneficial provision under Article 15(3) as well. It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men, the report said.


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