While observing that it was time to revisit the penal provision that provided immunity to adulterous women, the Bombay high court on Monday upheld the constitutional validity of Section 497 of the Indian Penal Code.
"The offence of adultery is punishable under Section 497. It is not against the husband, though he is entitled to lodge a complaint, it is against the institution of marriage and the matrimonial home," a division bench of justice BH Marlapalle and justice UD Salvi observed, while dismissing a petition challenging the constitutional validity of the penal provision.
A Worli resident, facing prosecution for adultery, had filed a petition contending that Section 497 was outdated in view of the changed social scenario and particularly after the Constitution of India guaranteed a right to life and a right to privacy.
His counsel Niteen Pradhan submitted that the Parliament had recognised "live-in relationships" as a domestic relationship through the Protection of Women from Domestic Violence Act, 2005. And since there was no pre-condition for having a live-in relationship, an extramarital relationship between two married persons couldn't be treated as an offence.
He had sought striking down of Section 497 arguing that it took away the right to have free sex between two consenting partners, which, according to him, was against the fundamental right to life. The judges discarded his contentions.
The court, however, found some substance in the argument of Mihir Desai, who represented an NGO supporting the petitioner, on the need to revisit the law. But they left it to the discretion of the legislature to consider an amendment in the penal provision and bring adulterous women under its ambit.
Presently, only men indulging in adulterous relationship with married women are covered under section 497, but women are treated as victims and are granted immunity from prosecution.
The court, however, rejected Desai's contentions that adultery was no longer a criminal offence in many western countries. "Merely because adultery is not an offence in many countries and there is variance in quantum of sentence, Section 497 cannot be held as ultra vires to constitutional provisions.