The Supreme Court on Thursday, while hearing a petition seeking to make men and women equally liable for the offence of adultery, said that allowing sexual intercourse with the consent of a woman’s husband “is an indication of treating wife as husband’s chattel”, Live Law reported. “This is absurd!” Justice Indu Malhotra remarked.
Section 497 of the Indian Penal Code makes sexual 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. A five-judge bench of the Supreme Court is hearing a plea challenging the validity of the provision.
Judges RF Nariman and DY Chandrachud questioned the law for allowing the wife to have sexual intercourse with the consent of her husband. Nariman said the provision “fails the test of arbitrariness” and Chandrachud called it “peculiar”.
“In the institution of marriage which is built on two pillars, both parties are equally responsible for the commission of the act,” Chief Justice Dipak Misra observed.
Advocate Kaleeswaram Raj, appearing for the petitioner, said that invoking the offence of adultery against men is “highly illegal” and violative of men’s fundamental rights under Article 14 of the Indian Constitution. The lawyer said he does not seek to make the provision gender-neutral, but to declare it unconstitutional.
Speaking on the jurisprudence behind adultery, senior advocate Meenakshi Arora said that the objective was not to protect the bodily integrity of woman but to protect man’s control over wife’s sexuality, reported Bar & Bench. Agreeing with the court’s observation, senior advocate Meenakshi Arora said, “If adultery has its basis in woman being a property of man, then Section 497 has to go for that reason alone.” She said that the offence is predicated on the absence of consent or connivance of the husband.
Arora contended that the state should not intervene in an area that is out of public interest, adding that adultery laws in criminal sphere were being abolished globally.
The court will resume the hearing next week.
The petitioner, Joseph Shine, had argued on Wednesday 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 Wednesday, the top court asked why consensual sex between two adults should be a criminal offence. 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.
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.