Supreme Court to examine 157-yr-old law on adultery punishing only men

NEW DELHI: The Supreme Court on Friday agreed to review the constitutional validity of a colonial-era law on adultery which punishes only the man even though the woman, with whom he has had consensual sex, maybe an equal partner.

The top court also said if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of the right to equality.

Section 497 of the Indian Penal Code states 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 to the offence of rape, is guilty of the offence of adultery".

The offence of adultery entails a punishment of up to five years in jail or fine or with both. However, in such cases, the wife shall not be punishable as an abettor.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud termed the provision a "prima facie archaic" and said this "tantamounts to the subordination of a woman where the Constitution confers equal status".

"Time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses, and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue a notice," the bench said.

It said it would examine the constitutional validity of the 157-year-old provision and issued a notice to the Centre, seeking its response in four weeks.

The court said it needs to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.

Secondly, the bench said it would examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.