Constitution Bench will decide whether the provision of adultery in the IPC treats a married woman as her husband’s ‘subordinate’

The government on Wednesday told the Supreme Court that it does not want to drop adultery as an offence, saying such a move will only weaken the institution of marriage.

In an 11-page affidavit that will come up before a Constitution Bench, the Centre said the provision punishing adultery – Section 497 of the Indian Penal Code – "supports, safeguards and protects the institution of marriage".

The government agreed to the thought that "stability of a marriage is not an ideal to be scorned".

The Constitution Bench will decide whether the pre-Independence provision of adultery in the Indian Penal Code treats a married woman as her husband’s "subordinate" and violates the constitutional concepts of gender equality and sensitivity. 

The petition filed by Joseph Shine, represented by advocates Kaleeswaram Raj and Suvidutt M.S. seeks to drop Section 497 as a criminal offence from the statute book. 

Terming the penal provision as archaic, the apex court had said it was time to re-consider its past decisions and consistent view from 1954 onwards that the penal provisions was necessary to uphold family ties. 

Section 497 of the Code mandates that if a man has sexual intercourse with another’s wife without the husband’s "consent or connivance", he is guilty of the offence of adultery and shall be punished".  

The court had issued notice on December 8, 2017 on the petition. 

A three-judge Bench led by Chief Justice Dipak Misra had observed that the provision raised a question mark on social progress, outlook, gender equality and gender sensitivity. 

It was time to bring to the forefront a different view with focus on the rights of women, Chief Justice Misra observed. 

The Constitution Bench, to be headed by Chief Justice Misran, would likely consider whether Section 497 would treat the man as the adulterer and the married woman as a victim.  

The larger Bench may also examine why 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 had declared in the previous hearing. 

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.

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