Adultery : Supreme Court refuses to make Section 497 gender neutral, asks Centre how criminalizing adultery is “public good”

On Wednesday, the apex court rejected the Centre’s plea of making Section 497 which deals with adultery– gender neutral. The adultery law only penalizes the married man involved and absolves the woman involved with that married man when they commit infidelity.

The Central government represented by Additional Solicitor General Pinky Anand said, “Adultery is a public wrong which harms an important social institution in marriage as well as wife and children and hence can be classified as a public wrong. If the provision appears discriminatory then it can be read down to make it gender neutral so that both men and women can be punished for adultery.”

The Centre’s argument to defend the criminalization of adultery is that it defies the sanctity of marriage. Anand argued that adultery should remain a crime as it is a threat to the sanctity of marriage. Thus, by punishing both the woman and man involved, the law can be made gender neutral.

Anand added that the decision should not be made on international models where many countries have decriminalized adultery but keeping in mind the social scenario of the country.

A five-judge bench headed by CJI Dipak Misra and constituting of Justices R F Nariman, A M Khanwilkar, D Y Chandracud and Indu Malhotra argued, “Gender neutrality cannot make adultery an offence as the act is consensual. It may have civil remedies like being a ground for divorce but it cannot be categorised as public wrong as none of the consenting married adults accused of adultery complains that any one of them has been abused. Making it gender neutral would result in gymnastics.”

The bench added, “Adultery may not be the cause for a broken marriage but a consequence thereof. Many a time, a party to a marriage wants divorce after a marriage has broken down, but the case goes on for years in the court. If the woman finds solace, love and affection in another man, should that man be booked for adultery by her estranged husband just because the marriage has not been annulled through a divorce?”

The five-judge bench pointed out the discriminatory provisions in Section 497 and said that the burden to maintain the sanctity of marriage lies on the wife and not the husband.

The five-judge bench asked, “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.”

Section 497 states, “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 to the offence of rape, is guilty of the offence of adultery.”

It also punishes the married man involved with a five-year jail term or a fine or both, while the woman cannot be punished and is seen merely as an abettor.

Justice Nariman asserted, “The heart of the provision is that a cuckold husband can lodge a complaint against the paramour of his wife because he thinks his wife is his property.” The CJI added that if adultery was a consensual act, why should it be considered a criminal offence. “It is like calling a person for dinner and then getting him booked for house trespass,” said the CJI.

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