SC starts hearing plea against 'discriminatory' action in adultery cases

New Delhi : The Supreme Court on Wednesday commenced hearing on a plea that challenged the constitutional validity of a legal provision on the prosecution of a man involved in an adulterous relationship with a married woman but lets her go scot-free.

At the outset of the hearing by a five-Judge Constitution Bench comprising Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra, the question arose as to whether the matter should be referred to a seven-Judge bench since the issue was considered by a five-Judge Constitution Bench in 1954.

It was contended that since the issue had already been considered by the five-Judge Constitution Bench, it can't be reconsidered by another bench of the similar strength.

However, petitioner Joseph Shine's counsel Kaleeswaram Raj said that the matter could be heard by the five-Judge bench since the issue before the bench in 1954 was different, involving abetment whereas the present petition had challenged the validity of Section 497 of the Indian Penal Code on the ground that it was discriminatory.

This stand was supported by senior counsel Meenakshi Arora, appearing for one of the respondents.

The top court, by its 1954 and then 1985 orders by benches of four Judges and three Judges respectively, had upheld the validity of the IPC Section.

The apex court held that these judgments needed to reconsidered and by its January 5 order referred the matter to the five-Judge Constitution Bench. It said that when there is societal progress and gender equality and gender sensitivity comes into play, there has to be a different kind of focus on the affirmative rights conferred on women.

The Centre has opposed the plea, contending in its affidavit dated July 11 that decriminalising adultery by striking down Section 497 of the IPC, which penalises only men found engaging in adultery.

"The provisions of law under challenge have been specifically created by the legislature in its wisdom to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society."

The Centre asserted that Section 497 "supports safeguards and protects the institution of marriage".

"It is submitted that striking down Section 497 of the IPC and Section 198(2) the Code of Criminal Procedure will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage," the affidavit said.

Petitioner Joseph Shine -- an expatriate living in Italy -- contended that Section 497 was "unconstitutional" since it discriminates against men, adding that "when sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability".

The petitioner also challenged Section 198 of the CrPC that allows the aggrieved husband of the married woman involved in an adulterous relation to file a complaint and not the aggrieved wife of the man in such relationship.

Shine said these Sections were violative of the Indian Constitution's Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).