SC raises gender question on adultery law

NEWDELHI: WHY should only a man and not a woman involved in an adulterous relationship be criminally prosecuted?

This question was raised before the Supreme Court on Friday which agreed with the petitioner that section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Code of Criminal Procedure (CRPC) were “archaic” and “gender discriminatory”.

The three-judge bench led by Chief Justice of India, Dipak Misra, issued a notice to the government on the public interest litigation (PIL) that wants the two sections to be struck down and declared unconstitutional.

Thrice, in 1954, 1985 and 1988, the top court has dismissed petitions seeking similar relief.

Section 497 of IPC, read with the Crpc provision, makes adultery an offence. But only the man involved is liable to be punished, provided the husband of the woman with whom he is in a relationship, complains.

If the husband doesn’t, then no offence is made out.

“Ordinarily, the criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said concept is absent,” the Supreme Court said. “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?”

The bench noted that the provision relieves the woman of any liability.

“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. It seems to be based on a societal presumption.”