Hearing a PIL filed by Joseph Shine, the Supreme Court of India has issued a notice to Centre over the Constitutionality of Section 497 of the Indian Penal Code, which deals with the offence of adultery.
During the hearing, the bench headed by Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud observed that on a prima facie reading of Section 497, the provision relieves the woman of any liability.
The court said, “Though the act is hypothetically capable of being committed by both the man and the woman only one is liable for criminal offence.”
Adding further, it said, “It is perceivable from the language of the provision the fulcrum of offence is destroyed once the consent of husband is obtained. Viewed from that scenario, the provision creates a dent on the independent identity of women.”
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. However, it does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it.
“In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress,” the section further said.