Adultery Issue: Sustenance Of A Relationship Is Based On Parties, Says CJI Dipak Misra On Section 497

| August 8 , 2018 , 17:15 IST

The Supreme Court on Wednesday reserved its judgment in the petition seeking striking down of section 497 of the Indian Penal Code that criminalises adultery. 

A five-judge bench headed by CJI Dipak Misra along with Justice R.F. Nariman, Justice A M Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra were hearing the matter

Collective Good

Additional Solicitor General Pinky Anand, appearing for the Centre, commenced her arguments by saying that adultery has been made an offence by keeping in mind the sanctity of marriage as an institution.

 “What is this consent. There will be no offence if the husband consents to this relationship. What is this?  What is the sanctity of marriage here. If the consent of the husband is taken then there is no adultery.”

Not Individuals But Families

CJI Dipak Misra, while hearing the arguments and submissions asked, “What is the collective good in Section 497?”

ASG Pinky Malhotra replied, “In the Indian context, it impacts not just the two individuals but their families and societies and ultimately the State. Marriage is a sacred institution in India. Therefore, any intrusion into that is something which should attract penal consequences.”

Defending section 497 of the Indian Penal Code, ASG Mehta said that law must be evolved as per societal developments in India, and not in western societies and other countries.

Justice Indu Malhotra intervened and asked, “How can relation between two individuals be a crime and hence an offence against society, is it not a matrimonial issue.”

Really A Crime?

CJI Misra added, “Sustenance of a relationship is based on the parties, their willingness to adjust, State should not come into it.”

Giving a strong view of the matter, Justice DY Chandrachud said, “Even if you make Section 497 gender neutral, it only addresses the question of under inclusion; We still have to decide whether it should be a crime.”

Privacy Issue

Earlier, during the hearing, Advocate Jayna Kothari submitted, the basis for adultery law is that woman is considered a property of a man upon marriage and she cannot have sexual relations outside marriage while the man is allowed to,

She further made submissions regarding privacy and the right of a person to decide on his/her intimate association. She also argued on whether the institution of marriage will be affected or not by quashing Section 497.