The recent judgements of the honourable supreme court of India indicated a paradigm shift in the domain of Indian legal jurisprudence. This shift however immediate it might seem was a gradual process ,which was made palpable by the recent adjudications of the supreme court with respect to the constitutional validity of criminalisation of homosexuality under section 377 ,Aadhaar act, triple-talaq or talaq e biddat, prohibition of women of certain age into sabarimala temple and criminalisation of adultery. In all these judgements the court took a progressive stand and gave great importance to personal liberty ,the newly found or interpreted privacy ,equality and women empowerment.
Adultery judgement or decriminalising of adultery should be seen as a part and parcel of this positive paradigm shift. Adultery judgement along with sabarimala judgement deeply entrenched the nascent elements of feminist jurisprudence present in Indian legal system. This revolutionary change asserts that the apex court is not oblivious to the larger constitutional goal of women empowerment.
These fine judgements also speaks volumes about the contemporariness of the supreme court and its interpretations while dealing with public issues, this is evident in Aadhaar and adultery judgements. The elements of the paradigm shift or new paradigm referred above are beautifully encapsulated by the court in its well-tailored adultery judgement. For a better understanding of the adultery judgement its primal to know the definition of adultery and penalisation it carries in India, this also enables us to understand the internal biases plaguing this anachronistic provision.
According to the Indian penal code section 497 adultery is as follows “whoever had a sexual intercourse with a person who is or whom he knows or reason believe to be is the wife of an another man without the consent or connivance of that man, such intercourse not amounting to rape, is guilty of the offence adultery” In addition to that, according to section 198 of criminal procedure code(cr.p.c), only the husband has the locus standi or right to file a case against another man(adulterer) and deprives the same right to women. These two provisions deals with adultery in Indian law.
And are to be seen in mutual relation with each other to understand the constitutional inconsistencies in adultery law. The unanimous verdict by the five judges bench highlighted the glaring constitutional inconsistencies and invalidities in the provision of adultery in India. The various constitutional inconsistencies interpreted by the majority judgement are – By not giving women the right to file a suit in case of adultery committed by husband section 198 of cr.p.c is violating the provision of equality before law and prohibition of discrimination on basis of sex enshrined in article 14 and 15(1) respectively. We can infer from section 497 that adulterous relationship between an unmarried women and a man or a widow or a prostitute doesn’t amount to adultery under section 497 I.
P.C which makes it lopsided ,patriarchal and discriminatory against women. By asserting that consent of husband is required for a women to participate extra marital sex section 497 is implies that wife is a property of husband and presents husband as owner of wife’s sexuality.
The court also held that criminalisation of adultery means interference of the state into the realm of privacy protected under article 21 of the constitution. The court observed adultery(under section 497) as “chauvinistic and paternalistic notion which treats women as chattel” and described by justice Chandra chud as “patriarchy codified”.Justice Indhu Malhotra also held that the context in which adultery law was promulgated in 1860 was entirely different from the present circumstances and observed “the time when wives were invisible to law and lived in the shadow’s of their husband has long since gone by”.
The context the court was referring to was the plight of women in 1860 which made the law to keep women’s sexuality under husband this was irrelevant to the modern era. Justice Indhu Malhotra also observed “section 497 is based on the doctrine of coverture which holds that women loses her identity and legal right with marriage which Is a violative of fundamental rights and was not recognised by the constitution”. Condemning the unnecessary criminalisation of adultery and its violation of right to privacy justice Deepak Mishra held that “mere adultery cannot be criminal offence adultery may not be the cause of unhappy marriage but a result of it so, it will be tantamount to punishing people who live in a unhappy marriage criminal law in case of adultery commands people to be loyal which comes into the realm of privacy.
” The court also held that adultery is still as always a ground for divorce and can also be taken into consideration if the adulterous relation leads to suicide as abetting suicide. These are some of the important caveats the court highlighted. In spite of such gross constitutional invalidities, adultery law was upheld by the supreme court in three separate cases viz Yusuf Aziz vs State of Bombay(1954), Soumitra Vishnu vs Union of India(1985) and V Revanth vs Union of India(1987) in which Court cited various reasons such as Article 15(3)- special provisions for women to children to sanctity of marriage and consequent moral degeneration of society and destruction of family the bed rock institution of society. These arguments were again raised by the respondent in this suit union of India and were ignored by the court as mere speculations, which is in line with the paradigm shift the court is undergoing i.
e. giving greater importance to fundamental rights of individuals and dignity over popular morality and societal norms and values. This is evident in the adultery judgement wherein justice Chandra chud held that “autonomy is intrinsic in dignified human existence section 497 deprives women of this dignity, autonomy and agency”. Autonomy is an integral part of dignified human existence any provision which violates it shall and rightly so, in the words of the justice Deepak Mishra “comes under the wrath of constitution”, popular morality cannot dictate constitutional rights and how one should think. Right over a women’s sexuality is the heart of patriarchy by providing autonomy to women over their own bodies may lead to a equal world for all.
The body of women is not a state’s property nor it is the property of man(husband).