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Decriminalisation of Adultery a threat to sanctity of marriage & against Indian ethos, Centre to SC

July 11, 2018

Ministry of Home Affairs argued that PIL it should be dismissed at the very outset.

Today, the Central govt. has revealed to the Apex Court that it’s opposed to decriminalizing adultery in India, as it would be tantamount to eroding the sanctity of marriage & the fabric of the society.

The position was stated in an affidavit filed by the Union Ministry of Home Affairs (MHA) in response to a petition before the SC which has challenged Constitutionality of the Section 497 of the Indian Penal Code (IPC) & Section 198 (2) of the Code of Criminal Procedure (CrPC).

These Sections penalize men who’re found engaging in adultery, though women are immune from any such punishment. Further, if husband of the woman gives his consent for the wife to have sex with another man, no offence lies.

PIL challenging the constitutionality of such adultery laws is currently pending before a Constitution Bench of the top court.

Terming this writ petition as wholly ‘misconceived’, the MHA argued that it should be dismissed at the outset, as Section 497 of the IPC supports, safeguards & protects the institution of marriage.

In this regard, the MHA has endorsed the view taken by the Supreme Court in Smt Sowmithri Vishnu v. Union of India, where it was observed,

“If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book & adulterous relations will have a more free play that now. For then, it’ll be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriage is not an ideal to be scorned”

Reacting to criticism that the law is gender-biased, the MHA has pointed out that, “The question of equality with regards to the statute under challenge has already been observed & the matter is under consideration with the appropriate authorities.”

In 2003, the Committee on Reforms of Criminal Justice System had recommended that the Section 497 be made gender neutral, so that both men & women are penalized if they’re found to be committing adulterous acts.

As noted in its report, “The society abhors marital infidelity. Therefore, there’s no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man.

The Committee thus suggests that Section 497 of IPC should be suitable amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.”

The Malimath Committee has also made this recommendation to make Section 497 gender-neutral. After the Parliamentary Standing Committee on Home Affairs took note of the need for criminal justice reforms, the Law Commission of India is also considering the recommendation to make Section 497 gender-neutral.

As emphasized by the MHA, both the Criminal Reforms Committee & the Malimath Committee had also taken the view that object of Section 497 is to preserve the sanctity of the marriage.

The MHA has pointed,

“Striking down Section 497 of IPC and Section 198 (2) of CrPC will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution & sanctity of marriage. The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect & safeguard the sanctity of marriage, keeping in mind the unique structure & culture of the Indian society.”

Hence, the MHA has prayed for the dismissal of the petition filed challenging the adultery laws.

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