The Centre has sought dismissal of the petition challenging the vires of Section 497 of the Indian Penal Code, informing the Supreme Court that the issue is already being deliberated upon by the Law Commission of India.

The Centre’s affidavit begins with it demanding the dismissal of the petition, and asserting that Section 497 “supports, safeguards and protects the institution of marriage”. It submits, “It is submitted that striking down section 497 of IPC and Section 198(2) Cr.P.C. 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 writ 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 the Indian society.”

The affidavit then goes on to inform the Court about the Justice Malimath Committee report, which had suggested making Section 497 gender-neutral way back in March 2003. The recommendation was made in its Report on Committee on Reforms of Criminal Justice System.

It further informed the Court that the LCI was currently examining the issue by identifying certain focus areas and forming sub-groups to deliberate on such areas. “It is submitted that the final Report of Law Commission is awaited regarding the amendment of Section 497 IPC. The Malimath Committee in its report has held that the object of this section is to preserve the sanctity of the marriage.

The decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in laxity in the marital bond,” it added.

The Supreme Court had referred the petition challenging the constitutional validity of the adultery law to the Constitution Bench in January this year.

A three-judge bench of the Supreme Court headed by then Chief Justice YV Chandrachud had, in Smt. Sowmithri Vishnu vs Union Of India & Anr. upheld the constitutionality of the provision.

Three decades later, his son, Justice DY Chandrachud opined during the admission of the case that the wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act. The Bench headed by the CJI also observed that the provision seems archaic in view of the societal progress made so far.

The bench is therefore set to consider whether earlier judgments, which had upheld the provision, are to be reconsidered, in view of the social progression, perceptual shift, gender equality and gender sensitivity.