Won’t touch Adultery Law to make it an offence for women too, observes Supreme Court.

The five-Judge Constitution bench is headed by Chief Justice Dipak Misra and comprises of Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The top court will also examine if a person can be sent to jail on grounds that he had consensual intercourse with another person’s wife, reported the Bar and Bench.

“We will test whether Section 497 of the Indian Penal Code (IPC) on the basis of Article 14 (equality before law) should remain a criminal offence at all,” the bench also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

Currently, Section 497 of the 158-year-old IPC says: “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.” 

“He 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 case the wife shall not be punishable as an abettor,” the section says.

During the brief hearing, the court also rejected the demand of Additional Solicitor General Pinky Anand for referring the matter to a seven-judge bench, saying these issues were totally different than the issue that was considered by a five-judge bench in 1954.

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 issue, which was considered in the 1954 verdict of a five-judge bench, was whether a woman can be considered as abettor. In the instant petition it is totally different,” the bench said.

It said adultery is also a ground of divorce and apart from other civil remedies under various statutes.

“So, we have to examine whether the adultery provision requires to remain a criminal offence at all,” the bench said.

Currently, the Code of Criminal Procedure (CrPC) section only allows the husband of the woman to file a complaint.

He said they are seeking quashing of the provisions on the ground that it is not gender neutral and violative of the fundamental right to privacy.

“The question before the bench is whether a person can be sent to jail on the ground that he had sexual relations with a married woman,” he said.

The bench will resume hearing on the issue on Thursday.