NEW DELHI: The Supreme Court on Wednesday rejected the Centre’s plea to make Section 497 of IPC, which punishes only a married man for adultery while absolving the woman, gender neutral to punish both men and women if they strayed from marriage.

Appearing for the Centre, additional solicitor general Pinky Anand said, “Adultery is a public wrong which harms an important social institution in marriage as well as wife and children, and hence can be classified as a public wrong. If the provision appears discriminatory then it can be read down to make it gender neutral so that both men and women can be punished for adultery.”

But a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandracud and Indu Malhotra said: “Gender neutrality cannot make adultery an offence as the act is consensual. It may have civil remedies like being a ground for divorce but it cannot be categorised as public wrong as none of the consenting married adults accused of adultery complain that any one of them has been abused. Making it gender neutral would result in gymnastics.”

Anand said the court could read down the provision for public good if it found Section 497 discriminatory as it provided that no offence of adultery was committed if a married man had sexual relationship with another married woman with the consent or connivance of her husband. Before reserving verdict on a PIL by Joseph Shine, the bench said: “We will strike it down and if the legislature feels public good will be served by making adultery offence gender neutral, it was free to do so.”

Justice Nariman said: “The heart of the provision is that a cuckold husband can lodge a complaint against the paramour of his wife because he thinks his wife is his property.” The CJI asked since adultery was a consensual act, why should it be a crime. “It is like calling a person for dinner and then getting him booked for house trespass,” he said.

CJI Misra and Justice Chandrachud said: “Adultery may not be the cause for a broken marriage but a consequence thereof. Many a time, a party to a marriage wants divorce after a marriage has broken down, but the case goes on for years in the court. If the woman finds solace, love and affection in another man, should that man be booked for adultery by her estranged husband just because the marriage has not been annulled through divorce?”

