5-judge bench to decide validity of adultery law

The Supreme Court on Friday referred to a Constitution bench to decide the validity of Section 497 of the Indian Penal Code that punished only the man for adultery but treated a woman as victim and absolved her of any offence.

A three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the previous apex court judgements upholding the validity of the provision were to be reconsidered on the ground of "social progression, perceptual shift, gender equality and gender sensitivity".

The court also noted that one of those apex court's judgements was delivered by a four-judge bench. "So we think it appropriate to refer the matter to a Constitution bench," the bench said.

Admitting a PIL filed by Joseph Shine through advocate Kaleeswaram Raj on December 8, the bench had observed, "The Constitution confers equal status. A 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 the notice."

On Friday, taking up the matter again, the bench said there has to be a different kind of focus on the affirmative right conferred on women under Article 15 (prohibition of discrimination on religion, race, caste and sex or place of birth) of the Constitution.

The court ordered the files to be placed before the CJI for setting up a Constitution bench.

During the hearing, Raj submitted that the penal provisions have been treated to be constitutionally valid in three judgments Yusuf Abdul Aziz vs State of Bombay (1954), Sowmithri Vishnu vs Union of India and Another (1985), V Revathi vs Union of India and Others, (1988).

Of these, Yusuf Abdul Aziz held that the provision does not offend fundamental rights of equality and no discrimination.

According to Section 497 of the IPC, the man indulging in sexual relations with the wife of another man without his consent is guilty of the offence of adultery and would be punished for a maximum term of five years, or fine or both.

In such case, the wife is not punishable as an abettor. The complaint in this regard can be filed by the husband of the woman or anyone else who is taking care of the woman on his behalf.