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Supreme Court hints Section 497 may go
On Thursday, the Supreme Court believed that though this law on adultery has been for 158 years which punishes a married man for having sex with a married woman without the consent of her husband
NEW DELHI: On Thursday, the Supreme Court believed that though this law on adultery has been for 158 years which punishes a married man for having sex with a married woman without the consent of her husband.
The court swerving around the view of the Section 497 of the Indian Penal Code is unconstitutional even as adultery will remain a valid ground for both men and women to seek divorce.
Justice R F Nariman said, “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.”
A bench of CJI Dipak Misra and Justice R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra heard this petition. The CJI said, “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?”
The CJI added that, “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 license 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.”
Justice Chandrachud expressed that very often adultery happened when a marriage had already broken down and the husband and wife were living separately. He asked, “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?”
The Centre is expected to present its arguments on Tuesday.
