The Supreme Court on Thursday commenced hearing in the case of adultery law of Section 497 of the Indian Penal Code. The law criminalizes adultery committed by a woman in a marriage and punishes her lover if the husband takes legal action against them. The five-judge constitutional bench started hearing advocate Kaleeswaram Raj’s submission, who is representing Joseph Shine.

Justice DY Chandrachud pointed out that the provision exempts sexual intercourse by a man with another’s wife, if it’s done with the consent or connivance of the woman’s husband. He asks whether the provision can be saved by striking down the consent part, making it gender neutral, Live Law tweeted.

Justice Indu Malhotra highlighted the sexist nature of the provision as she said, “to give exemption to sexual intercourse with the consent of woman’s husband is an indication of treating wife as husband’s chattel. This is absurd!”.

However, advocate Raj objected to making the provision gender neutral and demanded to make it wholly unconstitutional.

Chandrachud observed that the provision is ‘peculiar’ as there is no offence if sexual intercourse is done with another’s wife with the consent or connivance of that woman’s husband. “This is peculiar,” he said.

Raj said Section 198(2) CrPC enables anyone having the “care” of woman to file complaint on her behalf. “Though seeming protective, the provision discriminates,” he said, adding that it considers woman as a “chattel”, lacking agency and capacity to take decisions for herself.

Section 497 punishes the lover of a woman engaged in a marriage but doesn’t have any provision for a married man who has sexual relationship with another woman, Raj stated. “Wife of adulterous man has to suffer as she can’t invoke Sec 497 so law discriminates indirectly,” he argued.

Earlier, Central government has supported the provision in order to maintain the “sanctity of marriage”.

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After Raj concluded his arguments, Senior Advocate Meenakshi Arora started her submission for the intervenor. Stating the historical origin of the law, she said, “Men considered women as their property, and adultery like theft of property, enabling husband to sue.”

“It objects not to protect bodily integrity of women but to enable man to control wife’s sexuality,” Arora said.

“The main virtue of women was chastity. Women were a property of husband or father. In 15 century, if somebody abducted a woman she had to marry the abductor,” she added.

She talked about rape laws changing with time and said, “Rape laws evolved in the interests of wealthy families so as to prevent property going to abductor of a woman, whom she eventually has to marry.”

Arora noted, “The provision needs to abolish on the single premise that woman is not the property of man.”

If sexual freedom is a fundamental right, then why should adultery be a civil wrong?- CJI Dipak Misra

However Justice Rohinton Nariman says that the use of phrase “connivance of husband” in the provision makes it further arbitrary.

“If sexual freedom is a fundamental right, then why should adultery be a civil wrong?” asked CJI Misra.

The hearing will resume next week.

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