New Delhi: The Supreme Court on Thursday made it clear that there is no rational basis in the adultery law to punish only the man, treating him as an accused and not the woman by treating her as a victim when both the partners derive equal benefit. A five Judge Constitution Bench comprising the Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Kanwilkar and D.Y. Chandrachud made this initial observation during the course of hearing of petitions challenging the validity of IPC Section 497 punishing only the man in adultery cases.

At the outset the CJI observed “if sexual freedom is a fundamental right then why should adultery remain a criminal law for man alone. If adultery has its basis in woman being a property of man then Section 497 is discriminatory.” Justice Chandrachud told counsel Kaleeswaram Raj, appearing for petitioner Joseph Shine, “each partner to a marriage is equally responsible to keep the sanctity of marriage intact. If a married woman has sexual intercourse with a married man other than her husband, why should the man alone be punished when woman too is equal partner to the crime? Such a distinction appears manifestly arbitrary.”

The CJI said, “It is absurd to treat a woman as a chattel. Adultery law reduces woman into a chattel. There is no crime if a woman has an extramarital relationship with the consent or connivance of her husband. Are women the chattels of their husbands?” asked the CJI. Justice Nariman wondered how such a provision was drafted in the Indian Penal Code.

Section 497 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 CJI said, “This provision grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption.” Counsel submitted that the apex court had upheld this provision in three judgments, yet it needed a re-look in the context of developments in the society.

He argued that Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution. He argued that 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. The said discrimination is against the true scope and nature of Article 14. He said Section 497 of the IPC couldn’t be interpreted as a beneficial provision under Article 15(3) as well. It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men.