The Supreme Court on Thursday said the adultery law per se is discriminatory and violates Article 14 as it punishes only the man and spares the woman portraying her as a victim.
"Both parties in adultery derive the benefit of the act. Despite that one is treated as a victim and other is punished. There is no rationality in it", said Chief Justice Dipak Misra.
A five-judge bench headed by Chief Justice Misra is hearing a PIL challenging the constitutional validity of a legal provision that provides for prosecution of the man involved in any adulterous relationship with a married woman, but lets her go scot-free.
The court found it strange that if an unmarried man has sexual relationship with a married woman, then it did not attract the offence of adultery.
Counsel Kaleeswaram Raj took the constitution bench through the various facets of law that discriminates between men and women in different situations like a married man can complain against another married man in adulterous relationship with his wife.
Kaleeswaram Raj is appearing for the PIL petitioner Joseph Shine who has challenged the constitutionality of Section 497 IPC and also challenged Section 198 of the Code of Criminal Procedure.
Describing the provision as "manifestly arbitrary", the court asked if women were "chattels of husbands."
The court wondered how law makers could have permitted such a provision which shuts its eyes to the offence of adultery when a married man has sex with another married woman with the consent or connivance of her husband.
Section 497 of Indian Penal Code whose validity has been challenged, says: "Whoever has sexual intercourse with a person who is the wife of another man, without the consent or connivance of that man, such sexual intercourse is guilty of the offence of adultery."
During the hearing, the court observed that "adultery as a ground for divorce can be viewed as ground for reasonable restriction. So this wouldn't mean that there is no sexual autonomy. It only means there are valid limits to your sexual autonomy."
Senior counsel Meenakshi Arora appearing for a petitioner said, "If adultery has genesis of women being property of men, then on that basis, it has to be struck down."
Contending that marriages are intimate family affairs and cannot be preserved under a threat of criminal prosecution against one of the parties, Meenakshi Arora said, "Most countries in the world have done away with adultery as a criminal offence, including most in our neighbourhood such as Bhutan, Sri Lanka, China, South Korea."
Petitioner Joseph Shine—an expatriate living in Italy —contended that Section 497 was "unconstitutional" since it discriminates against men, adding that "when sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability".
The petitioner also challenged Section 198 of the CrPC that allows the aggrieved husband of the married woman involved in an adulterous relation to file a complaint and not the aggrieved wife of the man in such relationship.
Shine said these Sections were violative of the Indian Constitution's Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).