Let me start running my pen by expressing my unstinted support to the laudable stand taken by the Supreme Court recently when it agreed on December 8, 2017 to examine the Constitutional validity of a 157-year-old gender discriminatory provision in the Indian Penal Code which punishes a man alone for adultery for consensual sexual relations with another man's wife! When woman wants equality with men in every field then why should she not be on equal terms on this count also? Why should women be not punished at all and only men punished for entering into adulterous relationship with her with her full consent?
Why should a married woman be not punished for breaking the faith of her husband by entering into adulterous relationship with another man who alone is punishable? Why have laws not been amended even after more than 157 years of its being enacted? Why is a woman considered so foolish that she does not understand anything when she enters into a relationship with another man and man alone considered intelligent enough to understand the consequences?
Why only married men has the right to sue for adultery on women's behalf but not the other way around? Why a woman inspite of getting educated even in best of schools and colleges is considered not mature enough to understand the consequences of her giving consent while having sex with another man who is not her husband and not punished for adultery? Why has law not been amended even after so many years?
Why even in Jammu and Kashmir both men and women are punishable for adultery but in rest of India only men alone is punishable and women is completely exempted from punishment? Why is women being encouraged to commit more adultery and yet not be prosecuted for it? Why can't adultery be decriminalized as we see in case of so many foreign countries like England who created IPC for us when they were ruling India way back in 1860 criminalizing adultery but have themselves decriminalized adultery?
Why only a married women has been conferred the blank cheque by our laws by which she can have sex with as many men as she likes even after luring them and yet be not punishable for adultery as only men is liable under Section 497 of the IPC even though she may have fully lured him? Why a woman inspite of being IAS, IPS, Judge, Minister, Prime Minister etc is considered not fit enough to be punished for adultery even though she may have lured men into having adulterous relations with her? Why is she considered the property of her husband, a passive object without a mind of her own? Is it really so? Is it fair to do so?
Why under Section 198(2) of the Criminal Procedure Code only the husband of the wife is allowed to lodge a complaint and not the wife also? Why is it not appreciated that this leaves a wife with no remedy to lodge a case against her married husband? Also, if the woman who is involved in the relationship is unmarried, even then why the wife of the promiscuous husband is rendered helpless by this law? Can anyone please tell me?
To put things in perspective, a Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud sought the Centre's response in four weeks to a PIL by Joseph Shine from Kerala who is employed at Trento in Italy on why a married man alone and not the consenting wife of another should be hauled up. Why should a woman be not punished an abettor? What persuaded the Supreme Court to examine the Constitutional validity of what it felt might be an archaic provision was the clean chit given to the woman, irrespective of her role in the adulterous relationship as also counsel Kaleeswaram Raje's argument that as per Section 497 no offence of adultery is committed if there was consensual sexual relation between an unmarried man and an unmarried woman; and between a married man and an unmarried woman.
It is noteworthy that even the Apex Court wondered that while the woman is equal partner to the offence under Section 497 of the IPC but she is not held guilty or at par with man. The Bench said that, ''Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved.' To put it mildly: Isn't this preposterous?
Adding fuel to the fire, the Apex Court's Constitutional approach also stumbled upon another aberration in Section 497, which stipulated that it is not adultery if a married man had sexual relationship with a married woman with her husband's consent or connivance. Advocate Kaleeswaram Raj, who argued the petition cited how a man will not be punished for adultery if the woman's husband does not oppose to the relationship or in other words, consents or connives to such extra-marital affair of his wife. Finding the law bizarre, the Bench said, 'The fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. This will tantamount to subordinate of a woman when the Constitution confers her equal status.' The Bench very rightly wondered whether this will not amount to treating a woman as commodity by her husband to such an extent that his consent would nullify what would otherwise be an offence under IPC. This certainly must be amended forthwith.
Be it noted, the Bench also very rightly said that, '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.'
As it turned out, the Bench of CJI Dipak Misra, Justices DY Chandrachud and AM Khanwilkar noted that its decisions in the past were based on the Constitutional ethos contained in Article 15, which protects women against any kind of discrimination. The Bench noted that in 1954, when a four-Judge Bench of the Supreme Court in Yusuf Abdul Aziz vs State of Bombay first upheld the Constitutional validity of IPC Section 497, it relied on Article 15(3) which confers an obligation upon the State to make special provisions for women and children. Issuing notice to the Centre, the Bench observed that, 'Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband.'
Arguing for the petitioner Joseph Shine, advocates Kaleeswaram Raj and Suvidutt MS submitted that the penal Section was framed at a time when a wife was considered the husband's property. A lot of water has flown under the bridge since then! 157 years have lapsed! Should the law still not be changed? They very rightly asked the court to annul Section 497.
To be sure, CJI Dipak Misra recorded in the Supreme Court order that the time had come when society had to realise that a woman was equal to her husband in every respect. Justice DY Chandrachud paraphrased the petitioner's argument that it amounted to a violation of a woman's fundamental right against discrimination under Article 15 when law 'assumes a patronizing attitude to women.' Justice Chandrachud asked: 'By presuming the woman to be a victim, has the law made a patronizing assumption?'
Why is prosecution under Section 497 completely dependent on the husband's words? So much so that a woman can enter into an adulterous relationship if her husband consents! Is this fair?
Why should a husband have the unbridled right to give an unfettered licence to her wife to enter into an adulterous relationship for his own gains? Is the woman not being exploited by her husband by legitimizing it? Should this not be banned completely?
All said and done, Section 497 of the IPC must be thoroughly amended or be dumped altogether! Terming the provision 'quite archaic', the Supreme Court observed in the order that, 'When society progresses, rights are conformed and a new generation of thoughts should spring forth.' Senior advocate Nalini Chidambaram rightly called Section 497 (adultery) of the Indian Penal Code as 'a flagrant instance of gender discrimination, legislative despostism and male chauvinism'! She rightly described Section 497 as a kind of 'romantic paternalism' which stemmed from the assumption that women, like chattels, are the property of men.
Why only husband has exclusive right to prosecute the adulterer in a case involving his wife but no similar right has been conferred by Section 497 on a wife to prosecute the women with whom her husband has committed adultery? Also, why Section 497 does not confer any right on the wife to prosecute her husband for adultery? Also, why Section 497 does not take into account all such cases where the husband has sexual relations with an unmarried woman and be punished suitably thus giving an unfettered licence to them to have sexual relations with as many unmarried woman as he likes?
Why then should it not be discarded or at least thoroughly amended now? Thrice in 1954, 1985 and 1988, the Apex Court has dismissed petition seeking similar relief. But, no doubt, Supreme Court this time is determined to do the necessary course correction on this as there is a paradigm shift from its earlier stand! It is quite ostensible that this is also the crying need of the hour and has been felt strongly since a long time even by woman lawyers and activists alike!