india

Updated: Jul 11, 2018 21:33 IST

The Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government has opposed striking down the penal provision related to adultery from the Indian Penal Code (IPC), saying such a move would destroy the institution of marriage.

The government spelt out its stand in response to a petition challenging the constitutional validity of Section 497 of the IPC that punishes only men for adultery. An Italy-based non-resident Indian (NRI), Joseph Shine, challenged the provision, terming it unjust, illegal and arbitrary. The law prescribes a jail term of up to five years, a fine or both for men. Shine questioned the gender bias in the colonial-era law.

“Section 497 IPC supports, safeguards and protects the institution of marriage,” read the Centre’s affidavit in response to Shine’s petition. “It is submitted that striking down Section 497 of IPC and Section 198(2) CrPC (criminal procedure code)will prove to be detrimental to intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage,” the ministry of home affairs affidavit added.

According to the affidavit, the Law Commission has been considering the issue since December 2014.

A Supreme Court bench led by Chief Justice of India, Dipak Misra on January 5 referred the public interest litigation (PIL) to a Constitution bench, observing that although criminal law was based on gender neutrality, the concept was absent in the section being challenged. It said the provision dented the independent identity of women. The court agreed to take a relook at its earlier verdicts, upholding the validity of the law. Two judgements, one in 1954 and the other in 2011, had declared that the section did not violate right to equality and that a woman in an illicit relationship with a married man could not be punished.

The NDA government said in its affidavit: “Decriminalisation of adultery will result in weakening the sanctity of marital bond. Striking down the section would erode the sanctity of marriage and the fabric of society at large.”

It added that the legislature created the provision in its wisdom to protect and safeguard the sanctity of marriage, “keeping in mind the unique structure and culture of Indian society”.

Invoking a recent nine-judge Constitution Bench verdict that declared right to privacy a fundamental right under Article 21 of the Constitution, the petitioner contended, “Sexual privacy is an integral part of right to privacy.”

“Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to life, liberty and privacy) of the Constitution of India,” read the petition.

Shine also challenged Section 198(2) the Criminal Procedure Code, which allows a husband to bring charges against the man with whom his wife has committed adultery.

The petitioner cited the Law Commission’s report of 1971 that recommended removal of the exemption provided for women. A suggestion was also made to reduce the punishment for the offence from five years to two years.

A committee led by justice VS Malimath , which recommended measures to revamp the criminal justice system, had said adultery should be made gender-neutral. The National Commission for Women had in 2006 recommended decriminalising adultery, but opposed making it gender-neutral.

“Adultery is an archaic notion of law. it does not criminalizes extra-marital relationships of husbands with unmarried women but criminalises all sexual relationships of married woman outside marriage . Why should only women be burdened with protecting the sanctity of marriage,” senior advocate Gyanant Singh said.