The Supreme Court on Wednesday resumed its hearing on pleas challenging the constitutional validity of Section 497, a provision in the Indian Penal Code, which deals with adultery.
While examining the constitutional validity the apex court on Thursday observed that the adultery related provision is prima facie violative of the right to equality under the Constitution as it treats married men and married women differently.
A five-judge Constitution bench headed by Chief Justice of India Dipak Misra was hearing the petition, a part of which also states that no offence of adultery is made out if a married woman enters into a sexual relationship with a married man with the consent of her husband.
Section 497 of IPC, which is currently in effect, states that, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
The bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra termed this aspect of Section 497 "manifestly arbitrary" and said it treated married women as "chattel" on the ground that their relationship with other married persons depends on the "consent or connivance of her husband".
"Definitely the matrimonial sanctity aspect is there, but the way the provisions are enacted or made runs counter to Article 14 (Right to equality of the Constitution)," the Constitution bench stated.
The bench said it would see whether the provision can stand the test of the right to equality on grounds like "discretion and manifest arbitrariness". The bench will further continue the hearing post-lunch break.
The plea was filed by Joseph Shine, an Indian living in Italy, seeking quashing of the adultery provision in the IPC on the ground that it only punishes married men for having extra-marital sexual relations with a married woman.
(With inputs from agencies)