Adultery & Stability of marriage

The Centre’s affidavit demands the dismissal of the petition, asserting that Section 497 “supports, safeguards and protects the institution of marriage. It is submitted that striking down section 497 of IPC and Section 198(2) Cr.P.C. 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.” 

A three-judge bench of the Supreme Court headed by then Chief Justice YV Chandrachud had,  on  May 27, 1985, upheld the constitutionality of the provision. Three decades later, his son, Justice DY Chandrachud opined during the admission of the case that the wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act. 

The Bench headed by the CJI Dipak Misra observed that the provision seems archaic in view of the societal progress made so far. The bench is therefore set to consider whether earlier judgments, which had upheld the provision, are to be reconsidered, in view of the social progression, perceptual shift, gender equality and gender sensitivity. The government agreed to the thought that "stability of a marriage is not an ideal to be scorned". The Constitution Bench, to be headed by the CJI, may consider whether Section 497 would treat the man as the adulterer and the married woman as a victim. The larger Bench may also examine why the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. The petition challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure, which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.　　　

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The decriminalization of adultery might result in weakening the sanctity and laxity of a marital bond, but the individual rights of women are paramount. Section 497 attempts to safeguard the institution of marriage at the expense of women's liberty & rights. The responsibility of marriage has to borne by husband and wife equally. Adultery is no crime. While man & woman can do what ever they want in this free world, the adultery by one must automatically must give the other -- right to demand divorce without prejudice to alimony rights & obligations.