Adultery Law Is Arbitrary, Says Chief Justice Of India Dipak Misra

The centre says adultery must remain a crime so that the sanctity of marriage can be protected.

The Supreme Court is reading out its verdict on the over 150-year-old adultery law that punishes only a man and not a married woman for an affair by treating her as a victim and not as an abettor of the offence. The centre had defended the Victorian law saying adultery must remain a crime so that the sanctity of marriage can be protected, after a petition called for the law to be scrapped as it does not treat men and women equally.

A five-judge constitution bench, headed by Chief Justice Dipak Misra, had reserved its verdict in August. The hearing in the case by the bench, which also comprised justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, went on for six days and had begun on August 1.

The centre had said in court that adultery it is a public wrong which causes mental and physical injury to the spouse, children and the family.

"It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers," it said.

The top court had questioned the government how the law preserved the "sanctity" when the extra-marital affair becomes non-punishable if the woman's husband stands by her.

"Dichotomy is manifest (in Section 497)" as "husband can only have control over his emotion and cannot ask wife to do this or that", the constitution bench had told the government.

Section 497 of the Indian Penal Code 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."

Earlier, the Supreme Court upheld the law against adultery thrice. Last year, the top court said the laws on adultery treat a woman as her husband's subordinate and time has come for society to realise that a woman is as equal to a man in every respect.

(With inputs from agencies)