Will give clear order on adultery: SC
Sustenance of a relationship in a marriage is based on the parties, their willingness to adjust; the state should not come into it. This provision is discriminatory DIPAK MISRA, Chief Justice of India
NEWDELHI: The Supreme Court on Wednesday rejected the Centre’s contention to read down the law that makes adultery a criminal offence, saying it will either be retained or struck down.
A bench led by Chief Justice Dipak Misra also questioned the government’s argument that the adultery law protected the “sanctity of marriage.” “Reading down means restricting a provision. If we make it gender neutral, we will be expanding the scope and ambit of the law to include women… It would amount to amending the law… We can’t do it,” the five-judge bench told additional solicitor general Pinky Anand when she argued that the court should read down the law and make it gender neutral. The bench also reserved its verdict on a petition challenging the constitutional validity of section 497 (law on adultery) of the Indian Penal Code.
Filed by a social activist Joseph Shine, the petition states that it punishes only a man in an adulterous relationship and not the woman. This is in violation of Article 14 (right to equality) and 21 (right to life and personal liberty), Shine argued.
Anand defended the Britishera provision. She said the statute should be retained as adultery is a crime because “it damages marriage and family and hence a public wrong.”
She submitted that adultery is a public wrong and causes mental and physical injury to the spouse, children and the family.
Justice DY Chandrachud, a bench member, asked: “Why should the burden of maintaining the sanctity of marriage always rest on the woman and not the husband? This provision extracts fidelity from a woman, which it does not extract from man. Even if the Legislature makes Section 497 gender neutral, it only addresses the question of underinclusion; we still have to decide whether it should be a crime.”
The chief justice pointed out that it is not an offence if the husband of a woman approves the adulterous relationship.
“Sustenance of a relationship in a marriage is based on the parties, their willingness to adjust; the state should not come into it. This provision is discriminatory as it does not stand the legal scrutiny of Articles 14 (equality), 19 (freedom of speech and 21 (life and liberty),” the chief Justice wondered.
Justice Indu Malhotra said: “How can a relationship between two individuals be a crime and hence an offence against society. Is it not a matrimonial issue?”