New Delhi : 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 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.

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, reports PTI.

“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.

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