Adulterous Woman Can’t Be Treated As Victim And The Man, Seducer: Justice Indu Malhotra on Striking Down S.497IPC

Sec. 497IPC Can’t Be Called Beneficial Legislation, Can’t Take Cover Under Protective Discrimination Of Art. 15(3)It perpetuates stereotype, deprives women her right to prosecute.Striking Section 497IPC for not being gender-neutral, Justice Indu Malhotra has said in her part of the judgement that it would be unrealistic to proceed on the basis that even in a consensual sexual relationship out of marriage, a married woman is a “victim” and the male offender is the “seducer”.Taking note of times in which the provision was brought on the statute book and the changes in the Indian society after it, Justice Malhotra said, “It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a “victim”, and the male offender is the “seducer”.Also, she said that a wife’s inability to prosecute her husband and his paramour should be equated with the husband’s ability to prosecute his wife’s paramour.In saying so, Justice Malhotra held as unsustainable the view taken by Supreme Court in V Revathi v. Union of India and also in Sowmithri Vishnu v. Union of India & Anr in 1985.In Revathi’s case, the two-judge bench of Supreme Court had dismissed the challenge to Section 497IPC as discriminatory by holding that the absence of the right of the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of the husband to prosecute his adulterous wife for adultery while in Sowmithri’s case, the apex court repelled the plea against Section 497 IPC on ground that it is commonly accepted that it is the man who is the “seducer” and not the woman.“The view taken by the two-judge bench in Revathi (supra), that the absence of the right of the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of the husband to prosecute his adulterous wife for adultery, cannot be sustained. The wife’s inability to prosecute her husband and his paramour, should be equated with the husband’s ability to prosecute his wife’s paramour,” said Justice Malhotra.She also said Section 497 is a pre-constitutional law which was enacted in 1860 and there would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution.While putting Section 497IPC to test, Justice Malhotra said, “Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination,” said Justice Malhotra, adding that “Section 497 fails to consider both men and women as equally autonomous individuals in society”.“A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary,” she added.The court also cautioned that,“The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary” and “the State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices”.Anomalies And Incongruities In Sec. 497 IPCJustice Malhotra said Section 497IPC was replete with anomalies (listed below) which would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an “abettor”. The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery.The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man has no similar right to prosecute her husband or his paramour.Section 497 IPC read with Section 198(2) of the CrPC only empowers the aggrieved husband of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute “adultery” under Section 497 IPC.If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would...

Adulterous Woman Can’t Be Treated As Victim And The Man, Seducer: Justice Indu Malhotra on Striking Down S.497IPC

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