Decriminalisation of Adultery a threat to sanctity of marriage, Centre to Supreme Court

The Central government has revealed to the Supreme Court that it is opposed to decriminalising adultery in India, as it would be tantamount to eroding the sanctity of marriage and the fabric of the society at large..This position was clarified in an affidavit filed by the Union Ministry of Home Affairs (MHA) in response to a petition before the Apex Court which has challenged the Constitutionality of Section 497 of the Indian Penal Code (IPC) and Section 198 (2) of the Code of Criminal Procedure (CrPC)..As the law stands, these provisions penalise men who are found engaging in adultery, although women are immune from such punishment. Further, if the husband of the woman gives his consent for the wife to have sex with another man, no offence lies..The PIL challenging the constitutionality of such adultery laws is currently pending before a Constitution Bench of the Supreme Court..Terming this writ petition as wholly misconceived, the MHA has argued that it is liable to be dismissed at the very outset, as Section 497 of the IPC supports, safeguards and protects the institution of marriage..In this regard, the MHA has endorsed the view taken by the Court in Smt Sowmithri Vishnu v Union of India, where it was observed,.“…If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play that now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriage is not an ideal to be scorned...”.Responding to criticism that the law is gender-biased, the MHA has pointed out that the government is already considering the issue..“The question of equality with regards to the statute under challenge has already been observed and the matter is under consideration with the appropriate authorities.”.In March 2003, the Committee on Reforms of Criminal Justice System had recommended that Section 497 be made gender neutral, so that both men and women are penalised if they are found to be committing adulterous acts. As noted in its report,.“The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man..The Committee therefore suggests that Section 497 IPC should be suitable amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery…”.The Malimath Committee has also echoed this recommendation to make Section 497 gender-neutral. After the Parliamentary Standing Committee on Home Affairs took note of the need for criminal justice reforms, the Law Commission of India is also considering the recommendation to make Section 497 gender neutral..As emphasised by the MHA, both the Criminal Reforms Committee and the Malimath Committee had also taken the view that the object of Section 497 was to preserve the sanctity of the marriage..In this background, the MHA has argued,.“…striking down Section 497 of IPC and Section 198 (2) of 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 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.”.On these grounds, the MHA has prayed for the dismissal of the petition filed challenging the adultery laws..Read the Counter-Affidavit filed by the MHA: