The Supreme Court constitution bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud, Rohington Fali Nariman and Indu Malhotra concluded hearing submissions in the case on adultery and the validity of section 497 of the IPC on Wednesday (August 8), and reserved its judgment.

The day started with counsel Jayna Kothari’s concluding statement with referenced to US decisions in explaining the scope of right to privacy.

While arguing on whether the very institution of marriage will be affected in the quashing Section 497, she said that women in this country are considered the property of the husband. She cannot have sexual relations outside marriage, but the man is allowed to.

Additional Solicitor General Pinky Anand, arguing for the Union of India, countered the earlier submission and said that judgments from foreign jurisdictions aren’t relevant here where the matter has to be decided as per local social conditions.

Justice Chanrachud remarked that the provision extracts fidelity from women but does not from man. He pointed out that this case does not give recourse to a woman whose husband enters into sexual relationship with a single woman.

The Chief Justice asked what the collective good is, in Section 497.

Pinky Anand said that in India it impacts not just the two individuals but their families and societies and ultimately the state.

That was when Justice Indu Malhotra asked: “How can relation between two individuals be a crime and hence an offence against society? Is it not a matrimonial issue?”

The ASG defended her argument by saying that in India, marriage was a sacred institution and any intrusion into that should attract penal consequences.

Pinky Anand submits that basis of provision is not treatment of women as chattel but it only accounted for (ill) treatment meted out to women.

The decision was reserved.

– India Legal Bureau