The Supreme Court on Wednesday disagreed with the Centre's submission that the penal provision on adultery was needed to save the sanctity of marriage, saying it does not appeal to common sense that a woman cannot prosecute her husband for an adulterous relationship.
A five-judge constitution bench headed by Chief Justice Dipak Misra, which reserved its verdict on a plea challenging Section 497 of the IPC, was told by the Centre that adultery was a "public wrong" which damaged the sanctity of marriage and caused mental and physical injury to the spouse, the children and the family.
However, the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said "the husbands have been given a dominant position (in the law)".
It also posed whether it is correct that two people get involved, fall in love and have a consensual relationship, but "one is liable for prosecution and the other is not liable for prosecution."
Referring to the inconsistencies in the penal law, it asked "what is the sanctity of marriage here. If the consent of husband is taken, then there is no adultery? ...
"What is this consent? There will be no offence if the husband consents to this relationship? What is this? What is the collective public good in Section 497 to hold that this (adultery) is an offence".
The bench also questioned the law on various counts including that an extra-marital affair becomes non-punishable if the woman's husband stands by her adulterous relationship with another married person.
"We are not questioning the legislature's competence to make laws, but where is the 'collective good' in Section 497 of IPC," the bench asked.
This section of the 158-year-old IPC says: "Whoever has sexual intercourse with a person who is and whom he knows or has reasons 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."
Additional Solicitor General Pinky Anand, appearing for the Centre, commenced her arguments by saying that adultery has been made an offence keeping in mind the sanctity of marriage as an institution.
"Adultery 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 constitutional powers," she said.
She said that judgement of foreign jurisdictions which had set aside adultery as a criminal offence, should not be taken into account and the instant matter has to be decided on the basis of the social conditions prevalent in India. Moreover, adulterous relationships are not protected under the right to privacy.
The bench said the law in question was only "targetting" married women and not the men who can have relationships with unmarried women, widow and married women with the consent of their husbands.
"You expect married women to be loyal and you do not expect married men to be loyal," the bench said.
The law officer submitted that women are not being prosecuted for the offence of adultery and only outsider men, who disturb the sanctity of marriage, were being tried for the offence.
The inclusion of women cannot be permitted in the law in its present form, the bench pointed out. It said that only married women were being burdened with the task of maintaining the sanctity of marriage and "one expects fidelity from women only."
Consensual relationship outside marriage was an indication that the marriage has already broken down and such sexual intercourse should not have penal consequences, it said.
Stressing the need to have "uncommon common sense" to understand the constitutional concepts, the court asked "suppose somebody gets into an adulterous relationship, does it entitle the person to be prosecuted".
"Adultery can still be a civil wrong and nobody has the right to enter into an adulterous relationship. But it does not mean that they would be prosecuted," the bench said, adding "when it is consensual, how can there be prosecution".
The bench said the idea behind having the provision in the statute was that women were treated as "chattel of men" and the husbands should have the right to sue the paramours of their wives.
The bench also clarified that the it would not "read down the law" but would either allow the proviso to remain or strike it down.
The law officer said that 20 states of the USA have retained adultery as an offence.
The bench disagreed with the submission saying that marriage as an institution is viewed differently in India.
The court said the concept of marriage has been evolving and now the consent of the spouse at the time of tying the knot does not remain in force for all time to come and "there has to be consent of partners at every stage of life".
The bench also said "the state cannot impose a code of conduct on citizens saying they will have to conduct themselves in a particular manner".
It said sometimes marriages break down in reality, but it subsists on paper. So, the issue is can there be prosecution for an offence of adultery in such cases. "Sustenance of a relationship is based on the parties, their willingness to adjust and the State should not come into it," it added.