The colonial-era law criminalising adultery strips women of their "sexual autonomy" and treats them as a "chattel" and "property" of their husbands, the Supreme Court ruled today while holding the provision as unconstitutional.
Justice DY Chandrachud, who was part of a five-judge constitution bench that unanimously struck down Section 497 of the Indian Penal Code (IPC) dealing with the offence of adultery, said the provision was "destructive" and deprives women of their "autonomy, dignity and privacy."
He said sexuality of a woman, which was a definitive expression of identity, was part of her "inviolable core," and neither the state, nor the institution of marriage could disparage it.
Writing a separate concurring verdict, Justice Chandrachud said to "shackle" sexual freedom of a woman and allow criminalisation of consensual relationships was a denial of right of sexual privacy and considering a citizen as a property of other was an "anathema" to ideal of dignity.
In his 77-page verdict, he said "a society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home."
The true purpose of section 497 was to ensure the husband's control over the sexuality of his wife and "manifest arbitrariness" was writ large on the provision as it was founded on a notion that a woman, by entering into marriage, loses her voice, autonomy and agency.
"Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse," he said.
"The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, section 497 does not pass constitutional muster," Justice Chandrachud said.
He also noted that no recourse was provided to a woman against her husband who engages in sexual relations outside marriage.
"A woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognised as being so today," he said.
The judge said the provision also "disregards sexual autonomy" which every woman possesses as a necessary condition of her existence.
"Sexuality cannot be disassociated from human personality. For, to be human involves the ability to fulfill sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence," he said.
"Section 497 lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society," Justice Chandrachud said.
He said curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage, was "antithetical" to constitutional values and the essential values of liberty, dignity and equality cannot allow her to be treated as a possession of her spouse.
Justice Chandrachud noted that the history of section 497 revealed that the law was for the benefit of the husband and it was aimed at preventing the woman from exercising her "sexual agency".
"Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 (protection of life and personal liberty) of the Constitution," he said, adding that the penal provision was based on gender stereotypes about the role of women.
He noted that enforcement of "forced female fidelity" by curtailing sexual autonomy was an affront to the fundamental right to dignity and equality.
"Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality," he said.
Justice Chandrachud said the provision was a denial of substantive equality as it reinforces the notion that women were "unequal participants" in a marriage and were incapable of freely consenting to a sexual act.
He said that section 497 of IPC was all about protecting a husband's interest in his "exclusive access to his wife's sexuality" and characterising a woman as a "passive object, denuded of agency, is a denial of autonomy".
Justice Chandrachud said the provision has a significant social impact on the "sexual agency" of women and they were expected to be "chaste before and faithful during marriage".
"The notion that a woman is 'submissive', or worse still 'naive' has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman," he said.
Section 497 of the 158-year-old IPC says: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
Adultery was punishable by a maximum five years in jail or fine or both.
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