Adultery: Constitution Bench to decide the constitutional validity of Section 497 IPC

Supreme Court: Noticing that there is a need to reconsider the earlier judgments on the Constitutional validity of Section 497 IPC, regard being had to the social progression, perceptual shift, gender equality and gender sensitivity, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to the Constitution Bench.

The Court took note of the rulings of various judgment of the Supreme Court including Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 and Sowmithri Vishnu v. Union of India and Another, (1985) Suppl. SCC 137, wherin it was held that the impugned provision does not violate Articles 14 and 15 of the Constitution as there is a:

“reverse discrimination in ‘favour’ of the woman rather than ‘against’ her.”

The Court, in earlier judgments, had held that Section 497 only punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses. It was hence said that Section 497:

“does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex.”

The 3-judge bench, hence, was of the opinion that the provision seems quite archaic and especially, when there is a societal progress. The Court said that, apart from that there has to be a different kind of focus on the affirmative right conferred on women under Article 15 of the Constitution.

On 08.12.2017, the Court had said that the provision creates a dent on the individual identity of woman as:

“the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field.”

The matter will now be heard by a Constitution Bench. [Joseph Shine v. Union of India, 2018 SCC OnLine SC 2, order dated 05.01.2018]

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    Adultery.—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 offense of rape, is guilty of the offense 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.

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