NEW DELHI: A five-judge bench of the Supreme Court said on Wednesday that making only men liable for punishment for the offence of adultery appeared to violate the right to equality before law under Article 14 of the Constitution.

Commencing hearing on a PIL by one Joseph Shine, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra initially contemplated referring it to a seven-judge bench but decided later to continue with its hearing.

The petitioner's counsel, Kaleeswaram Raj, said a four-judge SC bench had in 1954 upheld the validity of Section 497 on the ground that Article 15 of the Constitution permitted special laws for women and children. He said in today's time it was inconceivable that a man having intercourse with another woman without her husband's consent or connivance would be prosecuted and face a jail term of up to five years, while the woman, despite being an equal partner in the crime, would go scot free.

Appearing for NGO Partners for Law in Development, senior advocate Meenakshi Arora said that Section 497, which makes adultery a crime for men, must be struck down because it treats women as chattel of their husbands by providing that it is not adultery if a man has intercourse with a woman with the consent of her husband. The CJI-led bench said, "If adultery gets scrapped as a crime for violating Article 14, then no one, neither the man nor the woman, will be punished. Adultery can be ground for divorce and other civil consequences." The hearing will continue on Thursday.

The Centre, in its affidavit, has argued that decriminalising Section 497 of the IPC, which punishes only a man for adultery, would wreak havoc to the institution of marriage. It said: "Striking down of the provision would be tantamount to decriminalising the offence of adultery, thereby eroding the sanctity of marriage and the fabric of society at large."

"Section 497 of the IPC supports, safeguards and protects the institution of marriage," the Centre said and cited a 33-year-old SC judgment in the Sowmithri Vishnu case, where a three-judge bench led by then CJI Y V Chandrachud had ruled that if Section 497 was struck down, "adulterous relations will have a more free play than now". It said: "Decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in laxity in the marital bond."

The Centre said: "Striking down of Section 497 of the IPC and Section 198(2) of the CrPC will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage. The provisions of law, under challenge in the present PIL, have been specifically created by the legislature in its wisdom to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of Indian society."

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