ADULTERY: should women also be punished asks India court

ADULTERY: should women also be punished? India’s Supreme Court asked to overturn archaic law and make the offence ‘gender-neutral’

  • Currently, adulterous men are treated as an ‘offender’, while the married woman is regarded as a ‘victim’
  • An Indian citizen living in Italy has sought to change the way in which women are treated, so they are also punished 
  • See more news from India at www.dailymail.co.uk/indiahome 

Soon, women – not just men – could be prosecuted for adultery in India. 

In a significant decision, the Supreme Court (SC) on Friday said it would examine whether the archaic provision of adultery in the Indian Penal Code (IPC) section 497, which treats only the man as an offender and the married woman as a ‘victim’, needs to be scrapped or modified. 

On a Public Interest Litigation (PIL) by one Joseph Shine, an Indian citizen settled in Italy, the bench headed by Chief Justice Dipak Misra sought the Centre’s view on a plea seeking to make the offence gender-neutral. 

At present, only married men who have a sexual relationship with a married woman without the consent of her husband are punished. 

A husband can only divorce a wife on grounds of adultery. But there is no penal provision against her. 

Currently, only married men who have had sexual relationships with a married woman without the consent of her husband is punished

‘Strike down Section 497 of the Indian Penal Code, 1860 as unconstitutional, discriminatory, being unjust, illegal and arbitrary and a violation of fundamental rights.

‘Even the SC in a 1985 judgment presumed that man is the seducer and not the woman. The observation is highly incomprehensible. It proceeded with a wrong presumption that only men are capable of committing/abetting the offence of adultery,’ said the PIL.

‘The exemption provided for women being prosecuted is discriminatory’, Suvidutt Sundaram, the lawyer for Shine argues in the petition. 

‘Prima facie, we find section 497 gives relief to the woman, though the offence of adultery is committed by both the man and the woman. Only one party is held liable for the criminal offence,’ the bench noted.

‘The Constitution confers equal status to man and woman. The time has come when society has to realise that a woman is equal to her husband in every respect,’ the bench noted. 

Dipak Misra, Chief Justice of India

Dipak Misra, Chief Justice of India

The PIL said the 42nd Law Commission Report analysed various provisions of the Indian Penal Code and made significant recommendations. 

One of them was to remove the exemption provided for women from being prosecuted and to reduce the punishment for the offence from five years to two years. 

As per Section 497 of the Code: ‘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 offence of rape, is guilty of the offence of adultery and shall be punished.’ 

Issuing notice, the court will examine two aspects of the provision. One, only the man is accused of adultery. The woman is always portrayed as a victim. So is she the ‘property’ of her husband or a passive object? 

‘How can a law patronise women by saying women are always victims in a case of adultery? Isn’t such a law discriminatory and implies gender bias? By saying that the offence is not committed if the woman’s husband gives his consent, isn’t the law reducing a woman into a commodity… a chattel?’ asked the bench.

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