NEW DELHI: The Supreme Court on Thursday indicated that the writing could be on the wall for the 158-year-old provision in the law on adultery that punishes a married man for having sex with a married woman without the consent or connivance of her husband.

The apex court seems to be veering around to the view that Section 497 of the Indian Penal Code is unconstitutional even as adultery will remain a valid ground for men and women to seek divorce.

PIL petitioner Shine Joseph had challenged the validity of the section, terming it discriminatory and unconstitutional as it only punished the man while protecting the woman, though both were equal partners to the crime in a consensual sexual act.

The provision punishes an adulterous man with imprisonment up to five years while specifying that the woman cannot be even booked as an abettor.

A bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said the provision appeared more discriminatory towards the woman as it treated her as a “chattel” of her husband even if she was not charged for the crime of adultery.

“Requirement of husband’s consent or connivance makes it appear as if woman is chattel or property of the husband. This renders the provision manifestly arbitrary. By treating women as chattel of husbands, the section also violates their dignity, which is part of right to life guaranteed under Article 21,” Justice Nariman said.

The CJI added, “It is typically an archaic provision. While it appears to be pro-women by protecting them against prosecution, it actually is anti-women as it treats them as husband’s chattel. Where did they get this concept of consent of husband for a woman to have intercourse with another married man?”

Building on this opening, senior advocate Meenakshi Arora and advocates Kaleeswaram Raj and Sunil Fernandes punched holes in the Centre’s argument that decriminalising Section 497 would affect the sanctity of marriage. They argued that the provision was not of much help in this regard as it did not punish a married man for adultery when he had sex outside marriage with a unmarried woman, widow or a trans-gender.

Citing a US judgment, they argued that Section 497 restricted sexual autonomy and freedom of men and women, irrespective of marital status. Sounding a caution, the CJI said, “If we hold Section 497 as unconstitutional, then the section goes. But our concept of sanctity of marriage is very different from that in the US. Striking down Section 497 will not mean the SC gave a licence to married men and women to have licentious behaviour and conferred a right to fall in love outside wedlock. Adultery will continue to be a gender neutral ground for divorce and that should be the restriction on a married couple’s sexual freedom.”

Arora said even Lord Macaulay, on whose work the IPC was framed in 1860, in his original draft had not recommended adultery to be made a criminal offence. He had said it was a moral wrong which should only have civil consequences. But the canonical concept of woman as husband’s property, and that if anyone wanted to enjoy that property he must have the spouse’s consent became law, she said.

Justice Chandrachud said very often adultery happened when a marriage had already broken down and the husband and wife were living separately. “It takes years to get a divorce decree. Should we say a woman must get consent or connivance of her estranged husband in seeking love and affection of another man? And if she does, should the man be prosecuted for adultery?” he asked.

Arora said most countries had done away with adultery as an offence, including Sri Lanka, Bhutan and China. If the provision was held constitutional, then India would be bracketed with countries like Afghanistan, Brunei and Iran which have a prudish view on women’s rights, she added. The Centre will present its arguments on Tuesday.

