NEW DELHI: The Centre has argued that removing the provision that holds men guilty of adultery and not women will wreak havoc on the institution of marriage. It held that men and women cannot be seen as equal partners in the crime of adultery and Section 497 of IPC should not be decriminalised.
Responding to a PIL by Joseph Shine which sought striking down of Section 497 or making both men and women equally liable for the offence of adultery, the Centre said: “Striking down of the provision would tantamount to decriminalising the offence of adultery, thereby eroding the sanctity of marriage and the fabric of society at large.”
“Section 497 of IPC supports, safeguards and protects the institution of marriage,” the Centre said, while admitting that the Law Commission is seized of the need for amending the provision suitably. The Centre argued that removing the deterrence would encourage adulterous behaviour with deleterious social consequences.
The contested section 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
The Centre cited a 33 year-old SC judgement in Sowmithri Vishnu case, where it had ruled that if Section 497 was struck down, then “adulterous relations will have a more free play than now”. It said: “Decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in laxity in the marital bond.”
The Centre said: “Striking down of Section 497 of IPC and Section 198(2) of the CrPC will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage. The provisions of law, under challenge ion the present PIL, have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of Indian society.”
However, the Centre did not deal with the contentious issue raised by the PIL about making both men and women equally liable for the crime of adultery. It said the issue of equal liability is under consideration of the Law Commission of India. “The final report of the law commission is awaited regarding the amendment to Section 497,” it said.
A three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud had in January this year referred the PIL to a five-judge bench while observing that prima facie it felt that the consistent rulings of the SC upholding validity of Section 497 required reconsideration by a larger bench.
“The provision seems quite archaic and especially, when there is a societal progress,” it had said. The SC had felt that it was about time to examine whether affirmative action mandated under Article 15(3) of the Constitution to benefit women in general could legally and judicially translate into absolving them of prosecution in a crime for which men are punished.
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