Adultery as a Criminal Offence: Supreme Court Finds Loopholes in Govt's Stand

New Delhi: The Supreme Court on Thursday questioned the central government's logic in defending adultery as a criminal offence.

A constitution bench, headed by Chief Justice of India Dipak Misra, seemed to be in disagreement with the Centre's view that validity of Section 497 in the IPC should be upheld because it protects sanctity of marriages.

"The government's rationale that it will protect sanctity of marriage doesn't look sound. Sanctity of marriage is gone even when a married man has sexual intercourse with an unmarried woman but that's not a crime. It is a crime only if a man has relations with a married woman and the husband of the woman complains," observed Justice DY Chandrachud, one of the members of the five-judge bench.

The judge remarked that sanctity of marriage goes out of the window in such situations but the legislature has criminalised only one instance.

The bench further observed that each partner to a marriage is equally responsible to keep the sanctity of marriage intact.

"If a married woman has sexual intercourse with a married man other than her husband, why should the man alone be punished when woman too is equal partner to the crime? Such a distinction appears manifestly arbitrary," it said.

Justice Chandrachud drew a parallel between the offence of bigamy under Section 494 in the IPC and Section 497. He noted that while bigamy is a gender-neutral offence and women can also be held liable.

"This disctinction between Sections 494 and 497 itself can make Section 497 unconstitutional," remarked Justice Chandrachud.

The court also deliberated upon doctrine of severability so as to strike down the discriminatory and arbitrary part of Section 497 while retaining the other portion.

Justice Chandrachud, however, said that he was not sure when such a route can be taken when issues of personal liberty are involved.

"We will have to examine if the entire Section 497 in the IPC should go," he added.

During the hearing, Justice Indu Malhotra described as "absurd" the part of Section 497 which gives husbands the authority to forgive the other man and settle the case.

"It is absurd to treat a woman as a chattel. Adultery law reduces women into a chattel. There is no crime if a woman has an extramarital relationship with the consent or connivance of her husband. Are women the chattels of their husbands?" asked the bench, wondering how such a provision was drafted in the Indian Penal Code.

The SC also cited a situation where a woman has been staying away from her estranged husband for years.

"If a woman then has a sexual intercourse with some other man, will it still lead to prosecution under Section 497 on a complaint by the estranged husband?" it asked.

Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody's wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.

Another peculiar aspect of Section 497 is the fact that the fulcrum of the offence is gone if consent or connivance of the husband can be established.

On a petition by Joseph Shine, the Constitution Bench is examining the validity of Section 497.

The arguments are currently underway in the court.

Replying to the plea, the central government has filed its affidavit, saying that the provision punishing adultery "supports, safeguards and protects the institution of marriage".

The government agreed to the thought that "stability of a marriage is not an ideal to be scorned".