Thirty-two years ago, his father authored a judgment reaffirming the position in law that in cases of adultery, only the man can be punished and the woman would not be liable even as an abettor. On Friday, the son, Justice D Y Chandrachud, as part of a three-judge bench of the Supreme Court, agreed to take a fresh look at this.
The court will 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, a passive object without a mind of her own?
The court is hearing a petition challenging the constitutionality of Section 497 IPC to read with Section 198(2) of the CrPC. The petition says Section 497 IPC is unconstitutional as it discriminates against men and violates Article 14, 15 and 21.
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.”
Section 198(2) CrPC says that “… no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Adultery is at best a violation of the terms of an agreement between a married couple. The IPC version of criminalising adultery with five years imprisonment is just a more moderate version of the Islamic versions which see it as a grave offence that deserves barbaric punishments like stoning and lashing. Such laws serve as encouragement to peep into people’s bedrooms though only the husband can make a complaint. It is possible that common law jurists conceived an adultery law to prevent duels between the wronged husband and the lover or to give the husband a legal device to hit back at the wife and her lover. Most countries in the West have decriminalized adultery. India should follow their example rather than split hairs over making it gender just.