Chief Justice of India Dipak Misra said adultery can't be a criminal offence and the adultery law is also violative of privacy right to some extent. A five-judge Constitution bench of the Supreme Court is pronouncing its judgment on the validity of section 497 of the Indian Penal Code (IPC), which criminalises adultery, on Thursday, here is a primer on the issues at stake.

Section 497 in the IPC

Drafted in 1860, the colonial era law criminalises adultery with up to five years imprisonment, while defining the perpetrator as “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”

Importantly, it adds, “In such case the wife shall not be punishable as an abettor.”

The plea: “Institutionalized discrimination”

The plea argued that the adultery law was based in the patriarchal idea of women as the property of men. The petition said “It indirectly discriminates against women by holding an erroneous presumption that women are the property of men. This is further evidenced by the fact that if adultery is engaged with the consent of the woman's husband, then such act ceases to be an offence…It amounts to institutionalized discrimination.”

The plea adds that the section exempt sexual acts with the wife of another man, if they are performed with the “consent of connivance” of the man – challenging this as an affront to the personal dignity.

The issue of consent

A key issue raised during the trial is as to whether a sexual act between two consenting adults can be treated as a criminal offence, even if it is not along the lines of conventional morality. Sending a person to prison for five years for adultery, the Chief Justice of India Dipak Mishra had orally observed in August, didn’t appeal to common sense. He added that adultery had a civil remedy: divorce.

“If a third party attacks or molests the wife of another, it amounts to rape. Rape is an offence. But if a relationship is carried with the consent of the woman, how does it amount to an offence? If there is consent [between two adults], why punish the wife’s lover?” he had asked.

The Centre had said that the government was considering making adultery gender-neutral.

The Centre’s argument: sanctity of marriage

Additional Solicitor General Pinky Anand had made the submission for the Centre that adultery should remain in the Indian Penal Code, arguing that it ensured the sanctity of marriage and was for the public good. The Centre had also argued that judgements by foreign jurisdictions that decrminalised adultery should not be taken into account, arguing that the matter should be decided on prevailing social conditions in India.