The Centre today favoured in the Supreme Court the retention of penal law on adultery, saying that it is a public wrong which causes mental and physical injury to the spouse, children and the family.
The submissions were made before a five-judge constitution bench headed by Chief Justice Dipak Misra by the Centre in its 17-page written note given to it by Additional Solicitor General Pinky Anand.
"It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers," the Centre said.
It said that adultery is not an action that affected just two people and it was a "tripartite interplay" in which the ones who gets the most aggrieved often have no idea about the actions of the adulterous couple.
The Centre said the previous judicial decisions challenging the vires of Section 497 have been dismissed on the ground that adultery is an offence against marriage.
Referring to the findings of the Malimath Committee, it said that the panel in its report has held that the object of this section is to preserve the sanctity of the marriage.
"The decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in laxity in the marital bond in a state where many women are still dependent on their spouses for their own as well as the survival of their children," the Centre said.
Adultery is a criminal offence in 17 countries including 20 States in United States of America including New York, Massachussets etc, it added.
"The Constitution empowers the Centre and states to legislate on criminal law and the Centre has exercised its powers in defining adultery and bigamy as criminal offences under the Penal Code. Judicial review will therefore be available only on the grounds of established violation of Articles 14, 19 and 21 of the constitution.
"It is important to remember that the context of Section 497 IPC is that only the outsider to the marriage can be punished," it said.
Adultery is a crime "against marriage and society" and thus the "act of adultery is a criminal offence as it affects the matrimonial right of a spouse. The act of adultery causes mental injury," it said.
Women are exempted from punishment for the offence, it said.
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