The challenge to the Constitutional validity of Section 497 of the Indian Penal Code - that penalizes adultery - came under severe criticism of the Bombay high court.
"If your challenge is accepted there will be no civil society left," said the division bench of justice BH Marlapalle and justice UD Salvi on Thursday, adding, "In fact there is need to amend the proviso in order to bring women also under its purview."
"We don't think there is any society in the world that would accept your view," justice Marlapalle told lawyers representing city-resident Deepak Mirwani, who has challenged the Constitutional validity of the proviso on various grounds.
"Even the most tolerant society would not do that," the judge said clarifying that accepting any challenge to the penal provision was something that goes against the institution of marriage. "If two adult persons want to have consensual sex, they are free to do so, but they should remain outside the institution of marriage," the judges said.
Section 497 of IPC provides for imprisonment up to five years or fine or both to a man who keeps physical relations with a married woman, other than his wife. The section, however, provides immunity from prosecution to the woman in such a relationship.
Mirwani has challenged the Constitutional validity of Section 497 on the ground that it had no relevance in the present day context. He has contended that the changing parameters of morality of society are apparent from the fact that live-in relationship has been recognized under Protection of Women from Domestic Violence Act, 2005.
Mirwani, who faces a prosecution for having an affair with a married woman, has further contended that the right to have physical relations with a consenting party emanates from the Right to Life as guaranteed by the Constitution of India.
But, the contentions failed to impress the judges, who opined that one can't lead an adulterous life within the limits of the institution of marriage.