“Adultery is a public problem which injures or causes harm and hence, it contains the elements of a criminal offence”, submitted ASG Pinky Anand before the Supreme Court five-judge bench on Wednesday.
Countering the reliance placed by the petitioners on international authorities, including those of South Africa, Namibia, South Korea and Guatemala, in context of the decriminalisation of adultery, she contended, “we are in India. We must go by the lateral principles laid down by Your Lordships”
In so far as it was advanced by the petitioners that the rationale of the Law Commission in authorising the husband of the adulteress to initiate criminal proceedings against the adulterer under section 497 was to grant him a recourse in the event his “right to property” vested in his wife is violated, the ASG argued that in framing the impugned provision, the Law Commission was not influenced by this “chattel concept” but that women used to be subservient, married off at an early age and had no independent resources.
The petitioners have highlighted the discrimination perpetrated by the section in as much as it immunises the adulteress from any prosecution and does not even permit the wife of the adulterer to file a complaint against her husband. In response, Ms. Anand submitted, “Ideally, they can only argue that if a woman is allowed to sue, she may only sue the other woman. There cannot be any prosecution within the marriage”
“The law was not attracted before 1955 (when the Hindu Marriage Act was introduced making a second marriage during the subsistence of the first one void ab initio). One could have 60 wives then”, commented Justice Rohinton Nariman.
The ASG, on Wednesday, endeavoured to justify the provision in the light of the ‘Harm principle’, which states that the only reason for which power can be exercised on a member of a civilised community against his will is to prevent harm to others.
“Private good shall always be subordinate to public good and the limitations on the freedom of choice in this behalf have to be placed by the law...the right to choose a sexual partner outside the marriage is not free from encumbrances...”, she suggested.
What followed was a discussion on the manifest arbitrariness of the impugned provision in as much as it does not qualify the sexual intercourse between a married man and an unmarried woman as adultery.
“Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman? You exact fidelity from a woman but not from a man?”, asked Justice D. Y. Chandrachud, doubting the purported object of section 497 is to safeguard the sanctity of marriage.
“Sometimes, a law may not apply to all but only to a class. Under-inclusion does not mean that we are not saving the institution of marriage”, replied the ASG.
“This under-inclusion is affecting the right under Article 15 of a woman to have recourse where her husband commits adultery with a single woman...your (Article 15(3)) argument may apply in case of the adulteress (in as much as she is exempted from prosecution) but not to the wife of the adulterer”, reflected Justice Chandrachud.
“What is the sanctity of marriage when the husband consents for his wife to engage in sexual intercourse with another man?”, inquired Justice Nariman. “Let me be honest. I cannot say much on this”, responded Ms. Anand.
Next, the ASG sought to juxtapose with the issue at hand the 2016 apex court judgment in Subramanian Swamy v. UOI upholding the constitutionality of criminal defamation.
“Your Lordships have held in that case that merely the existence of a civil remedy is no ground for not having a criminal remedy. Criminal defamation was not upheld on the basis of Article 19(2) but on the ground of potential hurt and because the statute says so (sections 499, 500 of the IPC). The same reasoning would apply to the criminalisation of Adultery. Adultery would anyway be a constitutional crime under Entry 1 of List III (in Schedule VII of the Constitution)”, she elaborated.
Distinguishing defamation from adultery, Chief Justice Dipak Misra noted that the State could make an act an offence for the collective good. “Show us what the collective good in section 497 is?”, he demanded.
The ASG submitted that marriages in India are not the exclusive affair of the parties to the marriage but also their families and hence, the society at large. Accordingly, she argued, the State becomes involved.
Justice Indu Malhotra voiced her skepticism about how the relationship between two adults, which is a matrimonial dispute, could be a crime against the society.
Towards the end of the hearing, Justice Chandrachud weighed in that making section 497 gender neutral would only address the issue of under-inclusion and that the real question is if Adultery should be a criminal offence at all.
With the Chief Justice Observing that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State, the judgment was reserved.