A Constitution Bench led by Chief Justice of India Dipak Misra will on Thursday decide whether the pre-Independence provision of adultery (Section 497) treats a married woman as a commodity owned by her husband and violates the constitutional concepts of gender equality and sensitivity.
The Chief Justice himself had orally observed that adultery did not even qualify as a criminal offence, and was at the most, a civil wrong. He said adultery had a civil remedy – divorce. Sending a person to prison for five years for adultery does not appeal to common sense, he said.
Firstly, an adulterous relationship is carried on with the consent of the woman.
The Centre wants adultery to continue in the Indian Penal Code as it ensures the sanctity of the marriage and is for public good.
“Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy available to the other. Where is the question of ‘public good’ in a broken marriage?” Chief Justice Misra had asked Additional Solicitor General Pinki Anand, who had appeared for the Centre.
Justice D.Y. Chandrachud observed that there may be cases in which adultery is a consequence of a broken marriage. Justice Indu Malhotra pointed out that there may be cases in which the couple would have been staying separate for decades, waiting for a divorce decree, and the husband could foist a case of adultery on his estranged wife’s paramour to trouble her.
Section 497 gives a husband the exclusive right to prosecute his wife's lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery. Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.Further, the law does not take into account cases where the husband has sexual relations with an unmarried woman.
