If the offence of adultery is made gender-neutral making any extramarital relationship by both husband and wife punishable, it will end up in a “gymnastic” exercise for the State that will be on its toes going about prosecuting them for such acts, said the Supreme Court on Wednesday.
The Court made the observation while reserving verdict on the constitutional validity of IPC Section 497 that punishes only married men accused of adultery and not women. Further, the archaic provision existing prior to Independence has also been attacked on the ground that an offence can be reported only by the husband of the wife involved in the adulterous act and if he consents, it ceases to be an offence.
Hearing arguments from the Centre on the concluding day of arguments, the bench of Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and indu Malhotra felt that the provision of adultery had to go as where there is consent between two individuals, it can at best lead to civil action of divorce but cannot give a license for State to step in.
The bench asked Additional Solicitor General (ASG) Pinky Anand what public good does the Centre seek to protect by making adultery an offence. ASG said that adultery affected sexual fidelity within marriage that harms not just the wife, but the family as a unit, thus causing public harm to the institution of marriage. The bench said that protecting a marriage was the duty of the husband and wife and said that this provision treats adultery as “cause” of marriage breakdown when it actually could be a “consequence”.
For instance, the Court cited a case where an extramarital relationship is a result of breakdown of marriage. Further, husband and wives remain separated for years and such a provision becomes a tool for the husband to seek vengeance against the wife. Also, the judges pointed out that a decree of divorce takes years to come. Till such time, it was hard to imagine that the warring spouses may decide to live their lives with persons of their choice.