The Supreme Court on Wednesday asked the Centre “what public good” the law on adultery serves as adultery is not an offence if a woman’s husband approves of such a relationship.
The court reserved its verdict on the validity of Section 497 of the Indian Penal Code, which makes sexual intercourse illegal if the man knows the woman is married but does not have the husband’s consent. The law does not allow the woman to be prosecuted.
A five-judge Constitution bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra heard the petitions challenging Section 497.
Additional Solicitor General Pinky Anand, who appeared for the Centre, told the judges that adultery is designated as an offence keeping in mind the sanctity of marriage as an institution.
“What is the sanctity of marriage here?” PTI quoted the judges as saying. “If consent of husband is taken then there is no adultery. What is the collective public good in Section 497 to hold that this [adultery] is an offence?”
Anand said judgement of foreign jurisdictions, which has set aside adultery as a criminal offence, should not be taken into account. The matter should be decided on the basis of social conditions in India, she added.
Referring to the inconsistencies in Section 497, the judges said the burden of maintaining the sanctity of marriage rests only with the woman and not the husband. When Indu Malhotra asked how a relationship between two individuals can be regarded as offence against society, Anand cited a defamation case filed by Subramanian Swamy to show that law can criminalise certain acts in the larger interests of society.
Last week, the top court said allowing sexual intercourse with the consent of a woman’s husband “is an indication of treating wife as husband’s chattel”.