Mumbai: Observing that one cannot lead
adulterous life within the institution of marriage, the Bombay
High Court has come down heavily on a city resident who filed
a petition challenging the constitutional validity of penal
provisions of Adultery under the Indian law.
"If such acts are allowed there will be no civil society.
In fact there is a need to amend the provision on Adultery in
IPC to bring women also under its purview," remarked Justice B
H Marlapalle and Justice UD Salvi on Thursday.
"Accepting any challenge to this penal provision is
something that would go against the institution of marriage.
If two adult persons want to have consensual sex, they are
free to do so but they should remain outside the institution
of marriage," the judges said.
Section 497 IPC provides for imprisonment upto five years
or fine or both to a person who keeps physical relationship
with a married woman other than his wife. The section,
however, provides immunity from prosecution to the woman in
such a relationship.
The petitioner, Deepak Mirwani, who faces a trial in a
Mumbai court for having adulterous relationship with a married
woman, had challenged the constitutional validity of section
497 IPC on the ground that it was not relevant in the society
He argued that there was a change in morality pattern
now-a-days with live-in relationship being recognised under
Protection of Women from Domestic Violence Act.
Mirwani contended that the Right to have a physical
relationship with a consenting person emanated from the Right
to Life as guaranteed under the Constitution.
However, judges opined that one could not have adulterous
relationship within the limits of institution of marriage. No
society would accept that, they said.
The petitioner had argued that he would be affected if
the trial went on and he later succeeded in the petition.
However, the High Court refused to stay the trial.