On August 8th, 2018 the Chief Justice of India Dipak Misra heading a five-judge Constitution Bench has observed that sending a person to prison for five years for adultery does not appeal to common sense.
Adultery does not even qualify as a criminal offence and is, at the most, a civil wrong the remedy of which is divorce.
First, an adulterous relationship is carried on with the consent of the woman. “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, why to punish the wife’s lover?” asked CJI Misra.
Additional Solicitor-General Pinky Anand appearing for the Centre argued that the offence of adultery should remain in the Indian Penal Code as it ensures the sanctity of the marriage, and is for the public good.
CJI Misra countered the submission and said that “protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy available to the other. Where is the question of public good in a broken marriage?”
Adultery is a criminal offence under section 497 of the Indian Penal Code, 1860. The section gives a husband an exclusive right to prosecute his wife’s lover whereas, the wife has no right to prosecute the woman with whom her husband has committed adultery.
Moreover, the provision does not confer any right on the wife to prosecute her husband for adultery and it also does not take into account cases in which the husband has sexual relations with an unmarried woman.