New Delhi: A law which apparently "patronises" women by treating them as victims in an adulterous relationship is set to be scrutinised by the Supreme Court.
"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 Justice DY Chandrachud, who comprised the bench headed by Chief Justice of India Dipak Misra.
A PIL has posed the following questions before the court:
— Can man be the only seducer in a relationship?
— Is a woman incapable of committing adultery?
— Should a man be the only person to be jailed if he has sexual relations with somebody's wife?
— Will a paramour get exonerated if the husband gives his consent for a relationship with wife?
— Doesn't the factor of husband's consent reduce a woman into a commodity and in a state of subordination?
With these questions being raised against the validity of a 150-year-old law, the Supreme Court on Friday agreed to examine the correctness of Section 497 of the Indian Penal Code.
Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody's wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.
A bench headed by CJI Misra issued a notice to the Centre on the validity of the impugned legal provision while underlining that the law appears to be prima facie "archaic" and doesn't treat women as equal to men.
The bench, also comprising Justices AM Khanwilkar and DY Chandrachud, noted that Section 497 treats women as "victims" in all situations and hold only men as liable for criminal prosecution.
"It is societal presumption. Ordinarily, the criminal law works on the principle of gender neutrality but in this provision, ex facie, this concept is absent," said the court.
The bench further took exception to the language of Section 497, which lays down that fulcrum of the offence is gone if consent or connivance of the husband can be established.
"This provision thus creates a dent in the individual identity of women... it appears to be quite archaic," added the judges.
The court emphasised that when society progresses and new rights are conferred upon people, new thought should also rise and hence, Section 497 must be reviewed in present times.
A law cannot render women into a state of subordination when the Constitution envisages equal rights for them, said the court as it posted the matter after four weeks for next hearing.
A PIL moved by Kerala-native Joseph Shine has urged the apex court to take a relook at the validity of Section 497 on the grounds that it was discriminatory and implied gender bias.
It also pointed out that a complete immunity from criminal prosecution was sought to be given to women under Article 15(3), which is primarily meant for granting affirmative rights to certain sections but not to shield them from prosecution.
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