Day 2 Arguments (Afternoon)

August 8th 2018

The Bench resumed hearings at 2 P.M.

Ms. Pinky Anand began by alluding to Subramanium Swamy case where the court had upheld the validity of criminal defamation law on the ground of preventing societal harm. Ms. Anand continued that adultery offence satisfies the societal harm principle which was laid down in Subramaium Swamy. CJI observed that Subramanium Swamy case dealt with freedom of speech issue under Article 19(1)(a) – principles laid down for freedom of speech issue are not applicable to this case.

Justice Indu Malhotra enquired if any form of intimate relationship should be criminalised? Ms. Anand responded in affirmative that adulterous relationship causes harm to the society as well as to the children and families of the couple. She added that retaining it as an offence would ensure that marriages are protected which is in the larger societal interest.

CJI enquired about the differential impact of adultery offence by observing – “why only one party is targeted? Law isn’t saving marriage but has the potential for creating more chaos?” The bench seemed unconvinced that adultery is an offence against the society. Ms. Anand persisted that since Indian society regards marriage as sacrosanct, criminalising adultery makes sense.

CJI observed that sanctity of marriage is still protected, as adultery is a ground for divorce. He again asked, what was being achieved by criminalising adultery. He noted, “Section 497 can’t be read down. It either goes or stays”. Justice Nariman weighed in by saying that doctrine of severability can’t be applied to remove the consent or connivance by husband under Section 497 since it will create a new offence.

Ms. Anand submitted that the Supreme Court has read down statutory provisions in the past and the same can be applied in Section 497. Justice Nariman objected to this by observing that to sever a certain part and retain Section 497 would amount to judicial law making which cannot be done.

Justice Nariman observed that “the whole point of adultery law was to allow the offended husband to sue the paramour”, so the part of Section 497, which excludes action if the paramour has taken consent from the husband, cannot be read down. CJI said that the form of marriage has also undergone change. There is a growing support for the idea that marriage does not amount to permanent consent between the partners.

Justice Chandrachud said that the question remains if adultery should be a crime even when it is made gender neutral. Justice Chandrachud reiterated CJI’s view that Section 497 has potential for mischief rather than saving the sanctity of marriage. He observed, “adultery can be the cause as well as the consequence of marital breakdown.” Justice Chandrachud brought the focus to Puttaswamy by observing that protecting individual autonomy of the adult individual is also at the heart of the case.

Ms. Anand reiterated that there is a larger societal harm, which justified the retention of Section 497. She said that adultery causes tangible physical and emotional harm to the spouse, which often results in depression, loneliness – such kind of injuries are covered under the Indian Penal Code, 1860.

Ms. Anand’s next strand of argument was that adultery law serves the purpose of Article 15(3), which allows for making special legislations for the benefit of women.  Justice Indu Malhotra intervened to say that the purpose of Article 15(3) is to frame beneficial laws and not to save women from penal liability.

Ms. Anand then submitted that the court could read down Section 497 to make it gender neutral.  The bench countered the suggestion by saying that making it gender neutral would amount to judicial law-making.

Ms. Anand responded that the court had read down child marital rape exception under Section 375 in Independent Thought case. Justice Indu Malhotra responded that reading down Section 497 is different from taking away an exception.

Next, Mr. Kaleeswaram Raj, the counsel for the petitioner Joseph Shine, began with his rejoinder arguments. He argued that decriminalising adultery does not mean that marital fidelity is not a value worth protecting. The argument is that marital fidelity or marriage should not be saved by the State through police powers.

Next, Ms. Meenakshi Arora, appearing for the intervenor Partners for Law in Development, started with her rejoinder submissions. She said that retaining adultery as an offence is like using sledgehammer to crack a nut. She rhetorically asked if adultery has its genesis in morality, would criminal law be the best way to enforce that idea of morality.

Ms Arora further said that criminal trial is a harsh process which carries shame and stigma – should a person go through it for breaching norms of morality? Criminal law shouldn’t be used to control conduct, which can be controlled by civil law. She concluded by saying that in a society that values liberty, criminal law should be invoked as a last measure of social control. She made a plea to the bench to decriminalise adultery.

The arguments concluded. The bench reserved it for judgment.