The Supreme Court Wednesday questioned the Centre’s contention that the penal provision on adultery should be retained to protect the sanctity of marriage. A five-judge bench, which is hearing petitions questioning the constitutionality of the provision that makes only men liable for the offence, asked what was the collective good in making adultery a punishable offence.
“For collective good, the legislature may make an offence. What is the collective good in Section 497 (of the Indian Penal Code),” Chief Justice of India Dipak Misra, who is heading the bench, asked. He was responding to Additional Solicitor General (ASG) Pinky Anand, who said the court must keep in mind Indian conditions while dealing with the plea. The bench also comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
Section 497 the 158-year-old IPC says: “Whoever has sexual intercourse with a person who is and whom he knows or has reasons 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”.
Anand referred to adultery as an “action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family”.
The ASG said such action “impinges on the sanctity of marriage and sexual fidelity encompassed in marriage…(and) has been classified and defined by the Indian state as a criminal offence in exercise of its constitutional powers”. She also opposed suggestions that privacy can be a defence to adulterous relationship. Justice Chandrachud said the provision expected fidelity from a woman, which it did not from a man, and wondered if it was the duty of the woman alone to be loyal in a marriage.