Adultery should be punishable to protect sanctity of marriages, Centre to SC

New Delhi: The Centre on Wednesday told Supreme Court that adultery should remain a punishable offence in order to protect the virtue of marriage. The Centre filed an affidavit opposing the petition filed by Joseph Shine that had sought to make men and women equally liable under the offence of adultery.

Adultery under Section 497 of the Indian Penal Code (IPC) was enacted to safeguard the sanctity of marriage and diluting it would be detrimental to matrimonial bond.

The 157-year-old British-era law on adultery says if a man is having sexual relations with the wife of another man, the former is liable to a jail term of five years accompanied by a fine.

In January 2018, the Supreme Court had referred to a five-judge Constitution bench a plea challenging the constitutional validity of the IPC's Section 497 which only punishes married man for having extra-martial sexual relations with another married woman.

A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud took a prima facie view that though the criminal law proceeds on "gender neutrality", the concept was absent in section 497 of the Indian Penal Code (IPC) which deals with the offence of adultery and referred the matter to the larger bench.

Section 497 on adultery says "whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor".

The court order referring the challenge to the validity of Section 497 to the constitution bench came on a plea by petitioner Joseph Shine.

The PIL petitioner has also challenged Section 198 of the Code of Criminal Procedure that allows the aggrieved husband of the married woman in adulterous relationship to file a complaint and not the aggrieved wife of the man in adulterous relationship.

Shine has questioned the validity of these sections on the grounds of their being violative of the Constitution's Articles 14 (Equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).

The apex court also referred to its 1954 judgement, delivered by a four-judge bench, that had upheld the validity of Section 497 saying that it did not violate fundamental rights like right to equality .

It referred to societal transformation and concepts of "gender equity" and "gender sensitivity" and said that affirmative rights have to be conferred upon women and earlier judgements needed to be examined by a larger Constitution bench.

The bench then referred the PIL filed by Joseph Shine, an Indian who is living in Italy, to a Constitution bench which would be set up by the CJI in his administrative capacity.

(With inputs from agencies)