Let adultery stay a crime, diluting law will hit Indian ethos: Centre to SC

Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody’s wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.

New Delhi July 11: The Centre on Wednesday stated that adultery should remain an offence as diluting the law would prove to be detrimental to the intrinsic Indian ethos and harm sanctity of marriages.

The response after a petition called for gender equality in the punishment for adultery. In December last year, a bench headed by CJI Dipak Misra had issued a notice to the Centre on the validity of Section 497 of IPC that deals with adultery. The bench stated that the law appears to be prima facie “archaic” and doesn’t treat women as equal to men.

Pushing for the dismissal of the petition, the Centre said striking down Section 497 of the Indian Penal Code and the Section 198(2) Criminal Procedure Code “will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage”.
The affidavit filed by the government in the apex court on Wednesday stated that Section 497 was a relevant provision and cannot be done away with. “It is submitted that striking down Section 497 of the IPC and Section 19 (2) of the CrPC would tantamount to decriminalizing the offence of adultery, thereby eroding the fabric of society at large,” it said.

The Public Interest litigation challenging the British-era law was moved by Kerala native Joseph Shine, who had urged the top court to take a re-look at the validity of Section 497 on the grounds that it was discriminatory and implied gender bias.

The PIL posed the following questions before the court: Can man be the only seducer in a relationship; is a woman incapable of committing adultery; Should a man be the only person to be jailed if he has sexual relations with somebody’s wife; Will a paramour get exonerated if the husband gives his consent for a relationship with wife; And that doesn’t the factor of husband’s consent reduce a woman into a commodity and in a state of subordination?

Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody’s wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.

During the last hearing, bench also comprising Justices AM Khanwilkar and DY Chandrachud, noted that Section 497 treats women as “victims” in all situations and hold only men as liable for criminal prosecution.

“It is societal presumption. Ordinarily, the criminal law works on the principle of gender neutrality but in this provision, ex facie, this concept is absent,” said the court.

The bench further took exception to the language of Section 497, which lays down that fulcrum of the offence is gone if consent or connivance of the husband can be established. “This provision, thus, creates a dent in the individual identity of women… it appears to be quite archaic,” added the judges.

The apex court had emphasized that when a society progresses and new rights are conferred upon people, new thought should also rise and hence, Section 497 must be reviewed in present times.