NEW DELHI: The question whether a woman and a man in an adulterous relationship can be treated as partners in crime spurred the Supreme Court on Friday to reexamine the validity of the IPC‘s Section 497 which, for the last 158 years, has absolved married women from being charged with adultery.
A three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, which had entertained a PIL challenging the “gender discriminatory” provision in the penal law and sought the Centre’s response, said it prima facie felt the consistent rulings of the SC validating Section 497 required reconsideration by a five-judge bench. Despite earlier SC rulings in favour of keeping adulterous married women out of the purview of the law, the bench was firm on a de novo reconsideration.We think it appropriate that the earlier judgments required to be reconsidered, regard being had to social progression, perceptual shift, gender equality and gender sensitivity,” it said.
“The provision seems quite archaic and, especially, when there is a societal progress,” the bench said. Petitioner Joseph Shine’s counsel, Kaleeswaram Raj, said a four-judge SC bench had upheld the validity of Section 497 in 1954 on the ground that Article 15 of the Constitution permitted special laws for women and children.
The SC felt it was about time to examine whether affirmative action mandated under Article 15(3) of the Constitution to benefit women in general could legally and judicially translate into absolving them of prosecution in a crime for which men are punished and women are willing or consensual partners.
To overcome the four-judge bench’s decision, the SC decided on Friday to refer the question to a five-judge bench. But the SC website showed that the March 10, 1954 judgment (Yusuf Abdul Aziz vs State of Bombay) was rendered by a five-judge bench comprising then CJI M C Mahajan and Justices B K Mukherjea, Vivian Bose, S R Das and Ghulam Hasan.
If it was rendered by a five-judge bench, then the present five-judge bench may have to refer the issue to a seven-judge bench as a new bench cannot overrule a previous one of same strength.
Referring to the 1954 judgment that used the Article 15(3) crutch to uphold the validity of Section 497, the bench headed by CJI Misra said: “There has to be a different kind of focus on the affirmative action conferred on women under Article 15 of the Constitution.” The Centre played it safe by not filing the response the SC sought from it on December 8.