“Does this relegate her to the level of a commodity?” asked Justice D Y Chandrachud, as the Supreme Court bench he was part of agreed to examine the constitutionality of Section 497 of the Indian Penal Code, which is popularly known as the adultery law.
On the face of it, the law—a vestige of the Victorian code that India has held on to—appears to look at the woman as the victim of adultery, and seems to discriminate against the man. According to the law, the wife shall not be punishable even as an abettor based on the reasoning that she is the victim and not the author of the crime.
However, a closer analysis of the legal provision reveals, as Justice Chandrachud observed, that it derives from a highly patriarchal view of the woman in society. It is indeed discriminatory in holding only the man as responsible. The aggrieved husband can bring to book the man his wife has had an extramarital affair with, but not the wife. However, the law also completely disempowers the woman in the entire legal dynamic and ignores her wishes and rights, perhaps reducing her to the 'level of a commodity.'
Section 497 of the IPC reads, “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.”
The law draws from the patriarchal sentiment that since the woman is a property of the husband, the man she has a relationship with outside her marriage is guilty of 'stealing the property.' Also, the inference to be drawn from the section is that if the sexual relation were to be established with the consent of connivance of the husband, then it would not amount to adultery.
The Supreme Court said that the provision really creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. “This is tantamount to subordination of a woman where the Constitution confers (women) equal status,” the court said.
"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 notice," the bench said.
The wife cannot be brought to book under the law, which the court said assumes a patronising attitude towards women, even as it noted that it defies the concept of gender neutrality of laws and discriminates against men. “It is to be seen when there is conferment of any affirmative rights on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband,” the court said.
Also, the wife cannot accuse her husband of adultery. Only an aggrieved husband can taken legal recourse. So if a woman's husband has cheated on her, she cannot bring him to book for adultery. Her husband can be accused of adultery by the husband, if any, of the woman he has established an extramarital relation with.
So the law, while it discriminates against the man, gives the woman no say at all and even objectifies her.
Advocates Kaleeswaram Raj and Suvidutt M.S., appearing for petitioner Joseph Shine, an Indian citizen but residing in Italy, said section 497 was "prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of.”
The Supreme Court said it would examine the constitutional validity of the 157-year-old provision and issued notice to the Centre, seeking its response in four weeks.
While the Supreme Court examines the constitutionality of Section 497, the National Commission for Women had way back in 2006 recommended decriminalising it. The NCW had said that adultery should be viewed as a breach of trust and be treated as a civil wrong rather than a criminal offence.
(With agency inputs)
