In a direct challenge to IPC, the constitution Bench of Supreme Court sought reasons as to why adultery, a consensual act, should be considered an offence.
The apex court was hearing a petition submitted Joseph Shine arguing that law was skewed against men and should be made gender neutral.
The court acknowledged that extra-marital activity could be allowed as ground for divorce but suggested that it should be included in civil penalties not as criminal offence.
“Why a criminal offence,” asked Chief Justice Dipak Misra, agreeing that “Adultery can be a ground for divorce. It can be part of civil law involving penalties,”.
The petitioner cited the present law on adultery is pro-woman to which the bench quickly reacted saying “we make it very clear that we will not…make it an offence for women too.”
CJI Misra instead said the bench would examine if something consensual should be an offence at all.
“We will test the validity of Section 497 on the anvil of Article 14 (right to equality),” which effectively means the court would strike it down on the ground that it was against the basic principal of equality for both men and women under the constitution.
The reasonableness of top court judges is unlikely to see light of the day, as Centre sticks hard to its stand that retaining adultery as criminal offence is a must for country’s “cultural ethos”.