Women, too, should be brought under the purview of section 497 of the Indian Penal Code, which penalises adultery, the Bombay high court said on Thursday, while hearing a plea on the validity of the law.
The court was hearing a petition filed by Worli resident Deepak Mirwani, who challenged the section on grounds that it was outdated.
Mirwani faces prosecution for allegedly having an affair with a married woman.
According to section 497 of the IPC, any man, married or unmarried, who engages in a physical relationship with a married woman, is guilty of adultery and faces imprisonment of up to five years, fine, or both. The woman, however, is immune from prosecution under the provision.
The division bench of justice BH Marlapalle and justice UD Salvi said, “If your challenge is accepted, there would be no civil society left. In fact, there is a need to amend the proviso in order to bring women under its purview as well.”
“If two adults want to have consensual sex, they are free to do so, but they should remain outside the institution of marriage,” the judges said.
“The offence of adultery has been incorporated in the IPC in 1872, based on the morality of society 140 years ago,” the petition filed by 40-year-old Mirwani states. He said the changing morality of society could be gauged from the fact that live-in relationships are now recognised.
Mirwani also said the right to have physical relations with a consenting party comes from the Right to Life guaranteed by the Constitution of India. According to him, “Such a natural and basic instinct can’t be made punishable, so long as it is within the confines of public order and decency.”
His arguments, however, failed to impress the judges, who said that an adulterous life could not be led within the limits of the institution of marriage.
On July 1, 2009, a city-based businessman had lodged a complaint against Mirwani alleging that he had an affair with his wife.
Acting on the complaint, additional chief metropolitan magistrate of the Dadar court issued a process against the Worli resident on October 15, 2009.