Section 497 of the IPC treats only the man as the offender and the married woman as a victim.

The Supreme Court on Friday said the dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”

The court admitted a petition to drop adultery as a criminal offence from the statute book.

“Time has come when the society must realise that a woman is equal to a man in every respect,” the Supreme Court recorded in its five-page written order.

Section 497 of the IPC mandates that “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 the offence of rape, is guilty of the offence of adultery and shall be punished.”

Issuing notice, the court would examine two aspects of the penal provision. One, why does Section 497 treat the man as the adulterer and the married woman as a victim.

Two, the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the "property" of her husband or a passive object without a mind of her own?

“The provision (Section 497) really creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamounts to subordination of a woman where the Constitution confers (women) equal status,” the Supreme Court declared.

Further, only a husband or the person in whose care the husband has left his wife can file a complaint under Section 497. The petition challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.

Arguing for petitioner Joseph Shine, advocates Kaleeswaram Raj and Suvidutt M.S., submitted that the penal section was framed at a time when women were considered a man’s property. They have asked the court to annul Section 497 as unconstitutional.

Equal status

The Constitution confers equal status to a man and a woman. The time has come when society has to realise that a woman is equal to her husband in every respect, Chief Justice Dipak Misra recorded in the order.

Justice D.Y. Chandrachud paraphrased the petitioner's arguments that it amounts to a violation of a women's fundamental right against discrimination under Article 15 when law "assumes a patronising attitude to women." “By presuming the woman to be a victim, has the law made a patronising assumption” he asked.

Why is prosecution under Section 497 completely dependent on the husband's word. So much so that, a woman can enter into an adulterous relationship if her husband consents. The debate in the court centered on the question whether Section 497 demeans a woman to the extent of her being considered the husband's "commodity".

"Does this relegate her to the level of a commodity?" Justice Chandrachud asked.

Terming the provision “quite archaic,” the court observed in the order that when society progresses, rights are conformed and a new generation of thoughts should spring forth.

The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.