Supreme Court: The 5-Judge Constitution bench comprising of CJ Dipak Misra and RF Nariman, AM Khanwilkar, Dr DY Chandrachud and Indu Malhotra, JJ., commenced with the day 2 on the Constitutional validity of Section 497 IPC hearing in regard to “Adultery”.

Learned Counsel Kaleeswaram began with the arguments and placed his first argument that adultery is historically and politically significant, by further quoting Deborah that “Adultery is bad but imprisoning for the act of adultery is worse. Making adultery ground for divorce is right but for penalizing is wrong.”

Indu Malhotra J., If there is consent of the husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel.

Dr DY Chandrachud J., If a married man has sex with an unmarried woman it is not adultery but does it still not affect the sanctity of marriage.

RF Nariman J. to Kaleeswaram: Lord Macaulay did not want inclusion of this Section.

CJ Dipak Misra: In the institution of marriage which is built by two pillars. The parties are equally responsible for the commission of an Act.

Advocate Kaleeswaram argued that Section 497 IPC is indirectly discriminatory towards women as the wife of an adulterous man suffers and she can’t even file a complaint against it.

Dr DY Chandrachud J.,  Offence of Bigamy under Section 494 IPC is gender neutral and women can also be liable.

Further, Advocate Meenakshi Arora began with her arguments and stated that moral reprehensibility is not a ground to make adultery a criminal offence.  She in continuation to her arguments stated that “The jurisprudence behind adultery was no different. The object was not to protect bodily integrity of woman but to protect man’s control over wife’s sexuality.”

Dr DY Chandrachud J., “De-criminalising adultery is not licensing adultery.”

On the conclusion of Advocate Meenakshi Arora’s arguments, Advocate Sunil Fernandes began with his set of arguments and stated that “Union of India has submitted that Section 497 IPC has the object of preserving sanctity of marriage. But it does not penalise a husband for having sex with an unmarried woman or widow though that hits the sanctity of marriage.”

Dr DY Chandrachud stated that “The right to say ‘no’ should be there after marriage as well.”

The matter is put up for further hearing on 07-08-2018. [Joseph Shine v. Union of India, WP (Crl.) No. 194 of 2017, order dated 02-08-2018]


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