SC dubs ‘archaic’ Section 497 arbitrary & anti-woman, hints it may go

NEW DELHI: The Supreme Court on Thursday indicated that the writing may well be on the wall for the 158-year-old provision in the legislation on adultery that punishes a married guy for having intercourse with a married woman without the consent or connivance of her husband.

The apex courtroom seems to be veering around to the view that Section 497 of the Indian Penal Code is unconstitutional at the same time as adultery will stay a valid flooring for men and women to hunt divorce.

PIL petitioner Shine Joseph had challenged the validity of the phase, terming it discriminatory and unconstitutional because it only punished the person while protective the woman, though both had been equivalent companions to the crime in a consensual sexual act.

The provision punishes an adulterous guy with imprisonment as much as five years while specifying that the woman cannot be even booked as an abettor.

A bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra stated the provision appeared extra discriminatory against the woman because it handled her as a “chattel” of her husband despite the fact that she was now not charged for the crime of adultery.


“Requirement of husband’s consent or connivance makes it seem as though woman is chattel or assets of the husband. This renders the provision manifestly arbitrary. By treating females as chattel of husbands, the phase also violates their dignity, which is a part of proper to lifestyles assured underneath Article 21,” Justice Nariman stated.

The CJI added, “It is normally an archaic provision. While it appears to be pro-women through protective them towards prosecution, it in truth is anti-women because it treats them as husband’s chattel. Where did they get this idea of consent of husband for a girl to have intercourse with another married guy?”

Building in this opening, senior recommend Meenakshi Arora and advocates Kaleeswaram Raj and Sunil Fernandes punched holes in the Centre’s argument that decriminalising Section 497 would affect the sanctity of marriage. They argued that the provision was now not of a lot lend a hand on this regard because it did not punish a married guy for adultery when he had intercourse outdoor marriage with a single woman, widow or a trans-gender.

Citing a US judgment, they argued that Section 497 limited sexual autonomy and freedom of men and women, regardless of marital standing. Sounding a caution, the CJI stated, “If we hold Section 497 as unconstitutional, then the phase is going. But our thought of sanctity of marriage is very other from that during the USA. Striking down Section 497 won't mean the SC gave a licence to married men and women to have licentious behaviour and conferred a proper to fall in love outdoor wedlock. Adultery will continue to be a gender neutral flooring for divorce and that are supposed to be the restriction on a married couple’s sexual freedom.”


Arora stated even Lord Macaulay, on whose work the IPC was framed in 1860, in his unique draft had now not advisable adultery to be made a prison offence. He had stated it was a moral flawed which must only have civil penalties. But the canonical thought of woman as husband’s assets, and that if any person sought after to experience that assets he should have the spouse’s consent was legislation, she stated.


Justice Chandrachud stated very ceaselessly adultery came about when a marriage had already damaged down and the husband and wife had been living one after the other. “It takes years to break up decree. Should we are saying a girl should get consent or connivance of her estranged husband in seeking love and affection of another guy? And if she does, must the person be prosecuted for adultery?” he requested.


Arora stated most international locations had achieved away with adultery as an offence, including Sri Lanka, Bhutan and China. If the provision was held constitutional, then India could be bracketed with international locations like Afghanistan, Brunei and Iran that have a prudish view on females’s rights, she added. The Centre will present its arguments on Tuesday.


SC dubs ‘archaic’ Section 497 arbitrary & anti-woman, hints it may go SC dubs ‘archaic’ Section 497 arbitrary & anti-woman, hints it may go Reviewed by kailash soni on August 03, 2018 Rating: 5
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