Doing away with the provision in the Indian Penal Code which penalises adultery would undermine the sanctity and institution of marriage in the Indian society, the Bombay High Court today observed.

The division bench of Justices B H Marlapalle and U D Salvi was hearing a petition challenging the constitutional validity of section 497 of the IPC.

"If this section pertaining to adultery as a criminal offence is done away with, what happens to the sanctity and institution of marriage. The entire concept of family and marriage would be defeated," the judges remarked.

A city-based businessman, who is facing a criminal case under section 497 for allegedly having affair with a married woman, has filed the present petition.

"In the Indian society, marriage is considered as a sacrosanct relation between a mature man and a woman. Adultery is not an offence against the society but an offence against the bond of marriage," Justice Marlapalle observed.

"In family court, majority of divorce cases are filed on grounds of incompatibility. Very few cases are filed on the grounds of adultery. The reason is tolerance. A married couple tries its best to protect the marriage," he added.

Senior counsel Niteen Pradhan, appearing for the petitioner, had earlier argued that it was a woman's fundamental right to have sex with a man of her choice, and it cannot be curtailed by an archaic and outdated concept of decency.

Advocate Mihir Desai, appearing for the NGO 'Forum Against Oppression of Women' which has filed an intervening application in this case, argued that the section is discriminatory and should be done away with.

The arguments will continue tomorrow.