‘Jail term for adultery does not make sense’

Sending a person to prison for five years for adultery does not appeal to common sense, Chief Justice of India Dipak Misra orally observed on Wednesday.

Adultery does not even qualify as a criminal offence and is, at the most, a civil wrong, he said, heading a five-judge Constitution Bench. He said adultery has a civil remedy: divorce.

First, an adulterous relationship is carried on with the consent of the woman. “If a third party attacks or molests the wife of another, it amounts to rape. Rape is an offence. But if a relationship is carried with the consent of the woman, how does it amount to an offence? If there is consent [between two adults], why punish the wife’s lover?” Chief Justice Misra asked.

The Bench was countering submissions by the Centre, represented by Additional Solicitor-General Pinky Anand, that adultery should remain in the Indian Penal Code as it ensures the sanctity of the marriage, and is for public good. “Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy available to the other. Where is the question of public good in a broken marriage,” Chief Justice Misra asked Ms. Anand.

Justice D.Y. Chandrachud observed that there might be cases in which adultery was a consequence of a broken marriage.

Justice Indu Malhotra pointed out that there might be cases in which the couple would have been staying separate for decades, waiting for a divorce decree, and the husband could foist a case of adultery on his estranged wife’s paramour to trouble her.

Section 497 gives a husband the exclusive right to prosecute his wife’s lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery.

Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.

Further, Section 497 does not take into account cases in which the husband has sexual relations with an unmarried woman.

Ms. Anand said the government was planning to make adultery gender-neutral. But the court countered what good would that do if a consensual relationship, though adulterous, between two adults was still considered a crime.

Justice Chandrachud asked the Centre why it was always the woman’s burden to maintain the “sanctity of marriage.” “You exact fidelity from the wife, but not from the husband. A woman has to remain loyal, but there is no need for a man to be loyal to his wife. Sexual fidelity applies only to a married woman,” he said.

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