Section 497: SC Calls Adultery Gender Bias & Against Equality

| August 2 , 2018 , 19:25 IST

The Supreme Court on Thursday said that matrimonial sanctity is an issue but the law provision that criminalizes the act (Section 479 of IPC) is a direct violation to the Article 14 that pertains to the fundamental right of Right to Equality.

The case is being heard by a Constitution Bench presided by Chief Justice Dipak Misra, along with Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Justice DY Chandrachud while hearing the petitioner said, “The argument against you is that section 497 protects the sanctity of marriage. However, if a married man has sexual intercourse, outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision though it also effects the sanctity.”

The judge further stated that sanctity of marriage goes out of the window in such situations but the only one instance has been criminalized by the law.

Citing the gender biasness of the law, Justice Indu Malhotra termed the section 497 of IPC as absurd. She said, “If there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel.”

Chief Justice of India Dipak Mishra said, "Both parties in adultery derive the benefit of the act. Despite that, one is treated as a victim and another punished. There is no rationality in it. The provision is a reflection of the times it was drafted."

What Is Adultery & Who Is The Petitioner

Adultery is a voluntary sexual intercourse between a married person and a person who is not their spouse.

Section 497 of the Indian Penal Code 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, 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.”

The petition filed by Kerala-based Joseph Shine, represented by advocates Kaleeswaram Raj and Suvidutt M.S., wants Section 497 to be dropped as a criminal offence from the penal code.