The Parliamentary Standing Committee on Home Affairs has recommended reinstating a provision to criminalise adultery in the proposed Bharatiya Nyaya Sanhita, but in a gender-neutral manner, Live Law reported on Monday.

The Bharatiya Nyaya Sanhita, which seeks to replace the Indian Penal Code, was introduced by Union Home Minister Amit Shah during the Monsoon Session of Parliament. Lok Sabha Speaker Om Birla had referred the bill, along with the Bharatiya Nagarik Suraksha Sanhita, to replace the Criminal Procedure Code, and the Bharatiya Sakshya Bill, to replace the Evidence Act, to the standing committee.

The committee adopted the bills on November 6, The Hindu reported. In its report on the Bharatiya Nyaya Sanhita, the committee said that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.

“For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender-neutral,” it said.

The Supreme Court in 2018 had struck down Section 497 of the Indian Penal Code, which criminalised adultery.

Section 497, a Victorian provision of the Indian Penal Code, said: “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 the offence of rape, is guilty of the offence of adultery and shall be punished.”

A Constitutional Bench comprising Dipak Misra, the chief justice at that time, and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra had held that Section 497 violated the right to equality and destroyed the dignity of women.

Other recommendations by the committee

The committee has also recommended the reintroduction of Section 377 of the Indian Penal Code, which was struck down by the top court in 2018 to the extent that it criminalised consensual homosexual activity between adults, in the new bill to deal with non-consensual acts.

The law criminalised “sex against the order of nature” and made it punishable by 10 years in prison. The judges had said at the time that provisions of the law that criminalise such activity between consenting adults were unconstitutional. The provision against bestiality, or sexual activity with animals, remained.

In its report, the standing committee has said that there are no provisions regarding non-consensual sexual offences against male, female, transgender and for bestiality in the Bharatiya Nyaya Sanhita.

“The committee feels that to align with the objectives stated in the BNS’s [Bharatiya Nyaya Sanhita] Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain section 377 of the IPC,” it said.

It also stated that the naming of the bill in Hindi would not violate Article 348 of the Constitution as its text is in English.