A three Judge Bench of the Supreme Court of India on Friday referred the petition challenging the Constitutional validity of Section 497 IPC to the constitution Bench.
The Supreme Court bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud observed in it's order;
"As indicated in our earlier order, we had noted that the provision seems quite archaic and especially, when there is a societal progress. Thus analyzed, we think it appropriate that the earlier judgments required to be reconsidered regard being had to the social progression, perceptual shift, gender equality and gender sensitivity. That apart, there has to be a different kind of focus on the affirmative right conferred on women under Article 15 of the Constitution. In view of the aforesaid, we think it appropriate to refer the matter to a Constitution Bench. Let the papers be placed before the learned Chief Justice of India on the administrative side for constitution of the appropriate larger Bench", states the order
During the last hearing Advocate Kaleeswaram Raj, appearing on behalf of the petitioner, contended before the apex court that the judgement in the Yusuf Abdul Aziz matter [AIR 1954 SC 321] may not be deemed fit, in so far as the top court has ruled there under, “Sex is a sound classification and although there can be no discriminate in general on that ground, the Constitution itself provides for special provisions in the case of women and children. Article 14 and 15 read together validate the impugned clause in section 497 of the Indian Penal Code, exempting the woman from prosecution even as an abettor”.
Mr. Raj also submitted that the judgement in the Sowmithri Vishnu case [AIR 1985 SC 1618], wherein the top court had held, “We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman”, was not acceptable.
Finally, the ratio of the top court in V. Revathi v. UOI & Ors., [(1988) 2 SCC 72] was also contended as being unacceptable, in so far as it upholds the constitutional validity of the impugned provision which disables the wife from prosecuting the husband for adultery, observing, “Be it realized that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law”.
The Counsel relied on the judgement in W. Kalyani v. State [(2012) 1 SCC 358], wherein it was observed that the provisions of section 497 of IPC have come under criticism from various quarters for gender bias in so far as it provides that only a man maybe prosecuted for the offence of adultery and even an adult woman shall be exempted.
“A woman can neither be a complainant under the impugned section, nor can she attract liability as either an adulteress or an abettor. It is a convoluted provision that requires deliberation”, submitted the advocate..
“Lord Macaulay had not inserted the said provision in the first draft of the IPC. Even in the 1971 Law Commission Report, displeasure had been expressed at the provisions of section 497. A recommendation in this behalf was also made by the Justice Malimath Committee on Reforms of Criminal Justice System in 2003”, further continued the counsel for the petitioner.
The bench observed, “Primafacie, we find section 497 gives relief to the woman, though the offence of adultery is committed by both the man and the woman. Only one party is held liable for the criminal offence. It remains to be seen if the conferment of affirmative rights on the woman can go to the extent of treating her as a victim to the peril of the husband.”
The bench also addressed the issue in so far as section 497 of the IPC treats the procurement of the consent of the husband as negation of the commission of the offence of adultery. “The wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act”, opined Justice Chandrachud.