What public good discriminatory provisions of law serves, asks court.
Supreme Court reserves adultery law order
New Delhi: The Supreme Court on Wednesday reserved petitions challenging the constitutional validity of the 157 year-old adultery law, viz. IPC Section 497, punishing only man and not a married woman for adultery by treating her as a victim and not an abettor of crime.
A five judge Constitution Bench comprising the Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chandrachud and Ms Indu Malhotra reserved verdict at the conclusion of arguments from the Centre. The Centre at the outset defended the validity of section 497 of IPC in SC saying adultery is a crime because it damages marriage and family and hence a public wrong.
Appearing for Centre, additional solicitor general Pinky Anand said that we in India must evolve our laws according to the societal developments and not go by what happens in western countries or other societies. She said the idea of Section 497 is not to enforce monogamy but to protect fidelity in marriage, which is part of the promise made by parties to a marriage.
She said adultery is a public wrong and causes mental and physical injury to the spouse, children and the family.
“Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified as an offence.”
Section 497 of the IPC says: “Whoever has sexual intercourse with a person who is 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.”
At this juncture, Justice Chandrachud intervened and observed, “Why should the burden of maintaining the sanctity of marriage must always rest on the woman and not the husband. This provision extracts fidelity from woman, which it does not extract from man. Even if the Legislature makes Section 497 gender neutral, it only addresses the question of under inclusion; we still have to decide whether it should be a crime.”
The Chief Justice of India asked the ASG “what is the collective public good this provision served as it provides that no offence would be made if the husband of a woman approves the adulterous relationship. Sustenance of a relationship in a marriage is based on the parties, their willingness to adjust; state should not come into it. This provision is discriminatory as it does not stand the legal scrutiny of Articles 14, 19 and 21.”