With this, a five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, began examining whether the pre-Independence provision of adultery (Section 497) treats a married woman as a commodity owned by her husband and violates the constitutional concepts of gender equality.
The petition filed by Kerala-based Joseph Shine, represented by advocates Kaleeswaram Raj and Suvidutt M.S., wants Section 497 to be dropped as a criminal offence from the penal code.
The Constitution Bench will re-examine a consistent view, dating back to 1954, that adultery as an offence should be retained in the penal code to uphold family ties. Section 497 of the Code mandates that if a man has sexual intercourse with another’s wife without the husband’s “consent or connivance,” he is guilty of the offence of adultery and shall be punished.
Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.