Mumbai: The constitutional validity of the
adultery law has come under judicial scanner, with the Bombay
High Court hearing a petition filed by a city-based
businessman challenging it.
The businessman approached the Court after he was booked
under section 497 -- pertaining to adultery -- of the Indian
Penal Code (IPC) for allegedly having an affair with a married
woman. The offence attracts punishment of up to five years.
Senior counsel Niteen Pradhan, appearing for the
petitioner, argued that it was a woman`s fundamental right to
have sex with a man of her choice and it cannot be curtailed
by an archaic and outdated concept of decency.
"People commit adultery only when their spouse is
incompatible. It is when something begins to sour. It is not
for thrills that anyone has a relationship outside marriage.
The right to have sex with a person of one`s choice is a
fundamental right," Pradhan argued.
He further argued that the provision in law was
discriminatory as a husband aggrieved by his wife`s
extra-marital relationship can get her paramour booked under
section 497, but a wife can not invoke the provision if the
husband is having affair with another woman.
Additional Solicitor General Darius Khambatta, however,
opposed the petition, stating that the right to break up a
marriage - by having an illicit affair with someone else`s
wife - cannot be seen as a Right to Life.
"The Supreme Court has rejected similar petition
challenging the inclusion of adultery as an offence under IPC
on three occasions," Khambatta argued.
"If two adults want to have consensual sex they are free
to do so but they should remain outside the institution of
marriage," Justice B H Marlapalle observed while adjourning
the matter for further hearing.