SC verdict decriminalising adultery shouldn’t apply to armed forces: Centre to SC

Tribune News Service

New Delhi, January 13

More than two years after the Supreme Court decriminalised adultery by declaring Section 497 of IPC as unconstitutional, the Centre has moved the Supreme Court with a plea that the historic verdict shouldn’t apply to the Armed Forces as it may cause instability among personnel who stay away from family.

A three-judge Bench headed by Justice RF Nariman issued notice to the petitioner on whose plea section 497 IPC was declared unconstitutional and referred the matter to a Constitution Bench.

Now, Chief Justice of India SA Bobde will constitute a five-judge Constitution Bench which will hear the Centre and the original petitioner and decide the issue.

In a historic verdict, the Supreme Court had on September 27, 2018 declared unconstitutional Section 497 of the Indian Penal Code which punished only men for having sexual relationship with a married woman.

In a unanimous verdict, a five-judge Constitution Bench headed by the then Chief Justice of India Dipak Misra had said the 158-year-old Victorian era law was “manifestly arbitrary” and violated a woman’s right to equality and right to non-discrimination guaranteed under Article 14 and Article 15 of the Constitution as it treated them as chattels.

The top court had, however, said adultery would be a ground for divorce in matrimonial proceedings and cautioned that the verdict should not be taken as a licence to indulge in such acts.

Striking down the adultery law, the top court had said, “This (Section 497 IPC) treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.”

“The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality,” said the top court. It treated a married woman as a property of the husband, the Bench had said.

It had said, “In treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well.”

“Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms,” said verdict by CJI Misra and Justice AM Khanwilkar.

The top court also declared Section 198 of the Criminal Procedure Code that deals with prosecution of offences against marriage as unconstitutional.

According to Section 497 of IPC, whosoever has sexual intercourse with the wife of another man is guilty of adultery, which is punishable with imprisonment of either description for a term which may extend to five years, or with fine, or with both. It says the woman in question can’t be punished as an abettor.

An Italy-based NRI—Joseph Shine – had challenged the provision which prescribes a jail term of up to five years or fine or both, terming it “unjust, illegal and arbitrary and violative of citizens’ fundamental rights.”

Shine had questioned the gender bias in the provision drafted by Lord Macaulay in 1860. He also challenged Section 198(2) the Criminal Procedure Code which allows a husband to bring charges against the man with whom his wife committed adultery.