The Supreme Court on Thursday said the government’s contention that the penal provision on adultery was necessary to maintain matrimonial sanctity was not sound, as no offence is made out if a married man had sexual intercourse with an unmarried woman.
“Matrimonial sanctity is an issue but the penal provision on adultery is apparently violative of the right to equality as it treats married men and married women differently,” a five-judge Constitution bench presided over by Chief Justice Dipak Misra said.
The court made the observations while hearing arguments advanced by advocate Kaleeswaram Raj in a PIL filed by Joseph Shine, challenging the penal provision of adultery under Section 497 of the Indian Penal Code.
Justice Chandrachud, a part of the bench, said, “In our society, divorce proceedings take 30 to 40 years. In such cases, it is not right to say that a woman cannot go beyond wedlock.
Can you deny a woman the right to dignity and seek solace in a relationship?”
“Even if we don’t recognise it, the society is going forward with it,” he said.
The CJI said the right to privacy judgement, giving the right to establish relationship and sexual autonomy, cannot be invoked here as adultery cannot be claimed as a matter of right and it is still a ground for divorce.
The Section 497 of the IPC states, “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 offender shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
In such cases, the wife shall not be punishable as an abettor, it adds.
Going through the provision, the bench said, “There is no crime if a woman has an extramarital relationship with the consent of her husband.”