"Woman can't be treated differently for the purpose of a criminal offence when in every other offence there is no gender bias," the top court said on Friday, underlining that there did not appear to be any reason to make an exception for women when "they are treated equal to men in all walks of life".
"It appears to be an archaic provision. When society progresses new generation of thoughts spring," said a bench of the Supreme Court.
The Indian Penal Code outlaws a "consensual" sexual intercourse between a man and a married woman unless it has the consent of the husband as well. But it is only the man who can be prosecuted on the husband's complaint, not the wife.
The court has asked the government to spell out its stand on a petition from Kerala-based activist. Joesph Shine's lawyer lawyer Kaleeswaram Raj said earlier verdicts had upheld the existing provision and left it to Parliament to amend the law that had not touched this law for decades.
Adultery wasn't listed as a crime in the first draft of the penal law proposed by Thomas Babington Macaulay-led panel back in 1837 but another commission, a decade later, pushed for its inclusion.
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