A petition challenging the validity of Section 497 of the Indian Penal Code, 1860, has been referred to the Constitutional Bench by a three Judge Bench, headed by Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar.

The petition, which seeks to challenge the constitutional validity of the Section, on the grounds of it rendering the position of women as chattel, was heard by the Hon’ble Bench, on Friday, which was then referred to the Constitutional Bench and issued a notice to the Central Government.

While in the case of Sowmithri Vishnu v Union of India and Anr., the Hon’ble Court had dismissed a similar petition on the grounds that “even though, it is correct to say that s.497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial.”, the present case has been admitted on the grounds that “Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. 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.”

The Hon’ble Bench, while taking the other provisions into account, noted that, “Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, 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 circumstances, to the peril of the husband.”