SC bench to decide if women can be punished for adultery

New Delhi: The Supreme Court on Friday referred to a five-judge Constitution bench the plea challenging the validity of a penal law on adultery which only punishes a married man for having extra-marital sexual relations with another married woman.

A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud took a prima facie view that though the criminal law proceeds on "gender neutrality", the concept was absent in section 497 of the Indian Penal Code (IPC) which deals with the offence of adultery and referred the matter to the larger bench.

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, 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 apex court also referred to its 1954 judgement, delivered by a four-judge bench, that had upheld the validity of Section 497 saying that it did not violate fundamental rights like the right to equality.

It referred to societal transformation and concepts of "gender equity" and "gender sensitivity" and said that affirmative rights have to be conferred upon women and earlier judgements needed to be examined by a larger Constitution bench.

The bench then referred the PIL filed by Joseph Shine, an Indian who is living in Italy, to a Constitution bench which would be set up by the CJI in his administrative capacity.

Earlier, the apex court had issued notice on the PIL that alleged that only married men could be punished for the offence of adultery for having consensual sex with the wife of another man.

It had also said if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of the right to equality.

It had termed the provision "prima facie archaic" and said that it was "tantamount to the subordination of a woman where the Constitution confers equal status".

"Time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic.

"When the society progresses, and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue a notice," the bench had said.

The court had said it needed to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.

Secondly, the bench had said it would examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.