‘Right to have sex is fundamental, adultery not a crime’
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In a petition challenging the constitutional validity of Section 497 (adultery) of the Indian Penal Code, Senior Counsel Niteen Pradhan submitted before the Bombay High Court that, "It is a woman's fundamental right to have sex with a man of her choice and, therefore, the same cannot be curtailed by an archaic and outdated concept of decency".
Pradhan was arguing on behalf of a Worli resident who has been booked under the section that can attract imprisonment of up to five years, if proved guilty. The section of the IPC entails punishment for a man, married or otherwise, having a sexual relationship with a married woman. Pradhan argued that the law was discriminatory as a husband aggrieved by his wife's extra marital relationship can get her paramour booked under the section, however, a wife in a similar situation had no redressal.
Pradhan argued on Wednesday that human relationships depend on compatibility and people commit "adultery" only when their spouse is incompatible. "It is when something begins to sour. It is not for thrill that anyone has a relationship outside marriage," Pradhan said. The right to have sex with a person of one's choice is a fundamental right covered by Article 21 (Right to life) under the Constitution of India, Pradhan argued.
Additional Solicitor General DJ Khambata, however, said the right to break a marriage — by having an illicit affair with someone else's wife — can, in no way, be seen as a Right to Life. "Lawmakers thought it appropriate in our social circumstances," Khambata said justifying the inclusion of adultery as an offence. He also said the Supreme Court has rejected petitions challenging Section 497 thrice.
The definition of adultery in the penal code of 1872 is "hopelessly irrelevant" in today's Indian society which has given a legal sanction to live-in relationships under the Domestic Violence Act, 2005, Pradhan said. Citing the example of England where adultery is not an offence, Pradhan said the institution of marriage was unharmed in that country and the objective of scrapping Section 497 was not to belittle marriage. "We are not moral police," he said.
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