The Supreme Court of India agreed to examine the constitutional validity of a 157 year old “gender discriminatory” provision in the Indian Penal Code which punishes a married man for adultery for having consensual  sexual relations with another man’s wife.

A bench of Chief Justice Dipak Misra and Justices A N Khanwilkar and D Y Chandrachud sought the Centre’s  response  to a PIL from Joseph Shine from India,  who lives in Italy, on why a married man alone, and not the consenting wife of another, should be hauled up.  The court noted that while the woman is an equal partner to the offence under Section 497 of IPC, she is not held guilty or at par with the adulterous man. 

“It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence, but the other is absolved.  It seems to be based on a societal presumption.”

Ordinarily, criminal law proceeds on gender 

neutrality, but in this provision, as we perceive, the said concept is absent.  That part, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim in all circumstance.

Section 497 states, “whoever has sexual  intercourse with a person whose and whom he knows or has reason to believe to be the wife of another man, without the consent or  connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend up to five years, or with fine, or with both.   In such a case, the wife shall not be punishable as an abettor.