Justice Chandrachud observed that,“Wife cannot be treated as a commodity by leaving her at discretion of her husband to give consent to the act”.
On Friday, Supreme Court has admitted and issued a notice on the writ petition challenging validity of the Section 497 of Indian Penal Code with respect to the impugned Section which extends immunity to the women from prosecution for offence of adultery, even as an abettor, under garb of Article 15(3) of Constitution of India.
The plea was admitted by Apex Court Bench comprising of CJI Dipak Misra and Justice A. M. Khanwilkar and Justice D. Y. Chandrachud.
While appearing on behalf of the Petitioner, Advocate Kaleeswaram Raj submitted before the SC Bench that judgement in Yusuf Abdul Aziz Case [AIR 1954 SC 321] may not be deemed fit, in so far as Supreme Court has expounded that “Sex is a sound classification and although there can be no discrimination in general on that ground, Constitution itself provides for special provisions in case of women and children. Article 14 and 15 read together validate impugned clause in Section 497 of Indian Penal Code, exempting woman from prosecution even as an abettor”.
He further contended before the Bench that judgement in Sowmithri Vishnu Case [AIR 1985 SC 1618] was not acceptable and tenable. in which the Supreme Court has laid down that,“We cannot accept that in defining offence of adultery so as to restrict class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is man who is seducer and not the woman”.
Advocate Kaleeswaram Raj further laid emphasis on judgement in W. Kalyani v. State [(2012) 1 SCC 358] in which Supreme Court expounded that provisions of Section 497 of Indian Penal Code have come under thec riticism from various quarters for the gender bias in so far as it provides that only a man maybe prosecuted for offence of the adultery and even an adult woman shall be exempted.
Thus taking into consideration the submissions made by the Counsel on behalf of the Petitioner, SC Bench stated that, “Prima facie, we find that Section 497 gives relief to woman, though offence of adultery is committed by both man and woman. Only one party is held liable for criminal offence. It remains to be seen if conferment of the affirmative rights on woman can go to extent of treating her as a victim to peril of husband.”