Adultery a crime? SC has doubts

R. Balaji, TT, Aug 03, 2018, New Delhi: A constitution bench of the Supreme Court on Thursday observed that adultery could be a ground for divorce under civil law but making it a criminal offence, as the current law does, appeared irrational and unconstitutional.

One, it interfered with an individual's sexual autonomy; and two, the current adultery law punished only the man and could thereby violate the right to equality.

Justice D.Y. Chandrachud, one of the five judges, batted for the sexual autonomy of women in abusive relationships, wondering why they should be prevented from seeking "solace and comfort" outside marriage.

The husband beating the wife is a fact of life in most Indian families, he said. Since formalising a divorce takes time, what's wrong if she seeks "solace and comfort in a relationship which will give her happiness", he said.

Justice Chandrachud argued that both men and men should have a degree of sexual autonomy.

The bench of Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, Chandrachud and Indu Malhotra is examining the constitutional validity of Section 497 of the penal code, which deals with adultery.

It clarified it was not considering whether women too should be punished for the offence - it was only examining the constitutionality of the provision since it punishes only the man involved (with up to five years in jail).

The court added that although adultery may be considered not to be a criminal offence, it is "morally impermissible" - for both husband and wife.

Yet Section 497 fails to make the offence gender neutral, unlike Section 494 (bigamy), which makes men and women equally liable for prosecution,

Justice Nariman felt that Section 497 could be struck down on the ground of violation of Article 14 (equality) for it seeks to prosecute only the man. Justice Misra shared this view.

"Both parties who are engaged in adultery derive the benefit of the act, where one party is treated as an offender and the other as a victim.... In a marriage everyone has to equally respect the marriage. In such a situation each party to the marriage has equal responsibility," Justice Misra said.

Section 497 makes adultery a criminal offence if a married man has sexual intercourse with the wife of another man without the latter's "connivance" or "consent".

A batch of petitioners has assailed the provision on various grounds. One, it is discriminatory because it punishes only the man, they say. Two, it allows only the husband whose wife is in an adulterous relationship to file a complaint of adultery, while withholding this right to the wife of a man in an adulterous relationship.

Three, it does not make it an offence if a married man has sex with an unmarried woman, or a married woman with an unmarried man. The arguments will continue on Tuesday.