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The five judges bench commenced hearing in the PIL seeking decriminalisation of the act of adultery given under section 497 of the IPC and section 198(2) of the Cr.P.C., on the ground of being unconstitutional. In the petition it was mentioned that protection of women from being accused of adultery is the violation of Article 14.
The whole idea of criminalising consensual sex was questioned by the petitioner, as adultery is one of the sole ground for divorce under several personal laws. In December last year, when the petition had come up for hearing, Advocate Kaleeswaram Raj, appearing on behalf of the petitioner showed dissent from the following orders passed by the SC:
Yusuf Abdul Azid, [AIR 1954 SC 321], wherein it was stated that the Constitution under Article 15 read with Article 14 provides protection to the women from the prosecution under the adultery charges. These provisions of the Constitution validates section 497 of the IPC, excluding women from prosecution even as an abettor.
Sowmithri Vishnu Case [AIR 1985 SC 1618], wherein it was stated that there is a common belief which is accepted that it is the man who is the seducer and not the woman.
The counsel has referred the judgement rendered in W. Kalyani v. State [(2012) 1 SCC 358], it was observed in the following case, that section 497 is biased and discriminating on the basis of gender, exempting women from the prosecution.
On January 5, the three judge bench headed by CJI Dipak Misra referred the validity of section 497 to the five judge bench. The bench also requested the larger bench to re-consider the earlier judgements rendered by the court in light of the development of the society and equal status given to women.
The centre in its affidavit prayed the dismissal of the petition on the ground of the matter is under deliberation by the Law Commission of India. The affidavit also mentioned that the following provision is made by the Parliament, to protect and safeguard the sanctity of marriage, keeoing in mind the unique structure and culture of the Indian society.
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