The Supreme Court on Wednesday began hearing a petition challenging the adultery law, and asked why consensual sex between two adults should be a criminal offence, Live Law reported.
The plea challenges the constitutional validity of the Section 497 of the Indian Penal Code, which makes intercourse illegal if the man knows the woman to be someone’s wife but does not have the husband’s consent. It does not allow the woman to be prosecuted.
The Constitution bench, headed by Chief Justice Dipak Misra, said it would consider whether the law violates the Right to Equality. The bench indicated that instead of considering whether the law should be made gender-neutral, it would examine whether adultery should be a criminal offence at all, News18 reported.
“Why should adultery be a crime at all if it violates Article 14,” Bar & Bench quoted Justice DY Chandrachud as saying.
The court scheduled the next hearing for Thursday.
The petitioner, Joseph Shine, argued that Section 497 discriminates against men. “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,” Shine said.
On July 11, the Centre filed an affidavit in the Supreme Court opposing the petition. The Centre told the court that Section 497 “supports, safeguards and protects the institution of marriage”.
The law against adultery
The Supreme Court last year asked the government why only the man is liable for adultery. In January, it referred the matter to a Constitution bench, which is hearing the case at present. In 2011, the top court said the law was biased against men and the provision reduces a married woman to a property of the husband.
In 1985, a three-judge bench of the Supreme Court headed by then Chief Justice YV Chandrachud upheld the provision’s constitutionality. Three decades later, his son, Justice DY Chandrachud, said while admitting the case that the wife cannot be treated as a commodity by leaving her at the husband’s discretion.