The provision in the Indian Penal Code that penalises adultery helps uphold the sanctity of marriage, the Bombay high court observed on Thursday.
A division bench of justice BH Marlapalle and justice UD Salvi was hearing a petition challenging the constitutional validity of section 497 of the Indian Penal Code (IPC) – a penal provision punishing adultery.
A Worli resident had moved court after the husband of the woman he was allegedly having an affair with lodged a criminal case against him.
Advocate Mihir Desai, representing Forum Against Oppression of Women, an NGO supporting the petitioner, contended that the section violated the dignity of women. “Nearly150 years ago, when the penal provision was incorporated in the code (IPC), women were treated as properties of their husbands, and any outsider’s physical relations with them was considered as trespassing.”
“If you see the petitions filed in family courts, you will not find even one percent of spouses seeking divorce on grounds of adultery. A majority of them are due to incompatibility,” they said.
Commenting on Desai’s submission that the section should at the most be a matrimonial offence and the aggrieved party could move family court for appropriate relief, the judges said despite having difference, most spouses don’t separate for the sake of their families.
Niteen Pradhan, counsel for the petitioner, said that not every man was trying to win another’s wife, and hence section 497 wasn’t required.
The judges said: “In a way, what you are wanting is that there should not be a bond of marriage, but the society would ask what is the progeny.”