Where is the 'collective good' in adultery law: SC asks Centre

Collegium members have been in consultation over Justice Joseph's recommendation [File] SC disagreed with the Centre's stance that adultery law is needed to save marriages | Sanjay Ahlawat

The Supreme Court on Wednesday reserved the verdict on Section 497 (Adultery) while disagreeing with the Centre's submission that the penal provision on adultery was needed to save the sanctity of marriage, saying it does not appeal to common sense that a woman cannot prosecute her husband for adulterous relationship.

A five-judge Constitution Bench headed by Chief Justice of India Dipak Misra, after hearing the arguments of the Centre, stated, "The idea of imposition of Section 497 of the Indian Penal Code is not to enforce monogamy but to ensure to protect fidelity in the marriage, which is a promise made by both the parties while entering to a marriage."

However, the bench, also comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said "the husbands have been given a dominant position (in the law)".

The bench also posed whether it is correct that two people get involved, fall in love and have a consensual relationship, but "one is liable for prosecution and the other is not liable for prosecution."

Referring to the inconsistencies in the penal law, it asked "what is the sanctity of marriage here. If the consent of husband is taken, then there is no adultery? ... What is this consent? There will be no offence if the husband consents to this relationship? What is this? What is the collective public good in Section 497 to hold that this (adultery) is an offence".

The bench also questioned the law on various counts including that an extra-marital affair becomes non-punishable if the woman's husband stands by her adulterous relationship with another married person.

"We are not questioning the legislature's competence to make laws, but where is the 'collective good' in Section 497 of IPC," the bench asked.

The Centre, earlier in the day, favoured the retention of penal law on adultery, saying that it is a public wrong which causes mental and physical injury to the spouse, children and the family.

“It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the 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 and defined by the Indian state as a criminal offence in exercise of its Constitution powers," the Centre said.

The Centre pointed out that adultery is not an action that affected just two people and it was a "tripartite interplay" in which the ones who gets the most aggrieved often have no idea about the actions of the adulterous couple.

The Centre said the previous judicial decisions challenging the vires of Section 497 have been dismissed on the ground that adultery is an offence against marriage.

The five-judge Constitution Bench is hearing the petition filed by a businessman, Joseph Shine.

Section 497 of the IPC, punishes only the married man who establishes a sexual relationship with a married woman, without the consent of her husband, but not a woman. Further, if the husband of the woman gives his consent for sexual intercourse with another man, the law does not recognise it as an offence.

The petitioner has argued that Section 497 of the IPC should be struck down, claiming that it is unconstitutional, unjust, illegal, arbitrary and violates fundamental rights.

Shine, in his petition, further claimed that the Supreme Court should intervene and pass a direction to strike down Section 198 (2) of the Criminal Code of Procedure (CrPC).

—With inputs from Agencies