Centre not in favour of scrapping Section 497


Adultery cannot be removed from the penal statute for being selective in punishing infidel husbands while sparing infidel wives, the Centre told the Supreme Court in response to a PIL seeking to make this offence contained in IPC (Indian Penal Code) Section 497 gender neutral.

Opposing the petition’s demand to scrap Section 497, the Centre in an 11-page affidavit stated that the Law Commission is considering a proposal to make adultery gender neutral. But till such time the offence cannot be abolished from the statute book as it will destroy the sanctity attached to marriage and the fabric of society at large. The validity of Section 497 is pending before a Constitution Bench that will deal with the same soon after it concludes hearing on IPC Section 377.

The petitioner Joseph Shine had pointed out several flaws in the archaic provision contained in the Indian Penal Code. He had stated that an action of adultery can only be brought against husbands by their wives who doubt him to have extra-marital relationship with another married woman. However, it is not adultery if the husband has extra-marital relationship with an unmarried woman. Further, he argued that an aggrieved husband cannot bring a similar action on a wife who is cheating on him.

It was in this backdrop, the matter got referred to a Constitution Bench while seeking a response from the Centre. The affidavit by the Ministry of Home Affairs recognised this dichotomy prevailing in the provision.

In March 2003, the Justice Malimath Committee on Reforms of Criminal Justice System recommended amendment to Section 497 in order to make it gender neutral. The Centre informed that this recommendation was referred to the Law Commission of India in October 2013 and since then the issue is under its “active consideration”. The Commission is expected to finalise its views as early as possible, the affidavit added.

But till such time, the Centre advocated for continuing with Section 497 in its present form.

It said, “The provision under challenge has 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…striking down Section 497 IPC will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.”



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