[Adultery] [Day-2, Session-2] One Retains Sexual Autonomy Even After Marriage, The Right To Say "No" Is Not Forfeited By Marriage: Justice Chandarchud

The hearing on Petitions challenging Criminalisation of Adultery concluded for the day with Justice Chandrachud repeating that one retains their sexual autonomy to an extent even after marriage and that the right to say “no” is not forfeited by marriage.

As the hearing in the challenge to the criminalisation of Adultery under section 497 of the IPC resumed post the lunch hour, Senior Counsel Meenakshi Arora threw light on how adultery was treated historically.

“Brahmanic traditions required a man to maintain rituality, which could not be possible without controlling the sexuality of his wife. The aim was not to protect her bodily integrity but the purity of her husband’s lineage, his caste line”, she submitted.

A woman was regarded as the property of her husband and to use the property without the consent of its owner was deemed tantamount to theft.

“Initially, in india, Adultery was not a criminal offence but an offence against the Lord, a spiritual offence...a canon-law offence could not have become a criminal offence under a secular Constitution...It used to be at most a tortious act, based on the idea of the right to property of a man, for which damages were payable, determined by such factors as the fortune of the parties and the character of the wife”, she advanced.

Further Building on the ancient notion of the wife being the property of her husband, Ms. Arora quoted from the 1904 US Supreme Court judgment in Tinker v. Colwell- “the wife is (in law) incapable of giving any consent to affect the husband's rights as against the wrongdoer, and that an assault of this nature (adultery) may properly be described as an injury to the personal rights and property of the husband...”

She also cited the English case of R v. Mawridge (1707) where adultery was held to be a partial defence for murder- “Where a man is taken in adultery with another man's wife, if the husband shall stab the adulterer or knock out his brains this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion of property”

Next, Ms. Arora highlighted that the idea of criminalising adultery had not found favour with Lord Macaulay. Reciting his reasons, she explained that for the poor men, adultery was not deemed to be a delicate intrigue, it was understood to be no more than the “loss of a menial” which could be satisfied with a pecuniary compensation, while those belonging to the higher classes would abstain from approaching the courts against their wives’ infidelity to save their honour.

Ms. Arora depicted how adultery eventually came to be an offence under the IPC and why the impugned section provides for the culpability of the man alone while immunising the woman. Quoting from the Law Commission debates, she read, “No man hopes for a conviction for this crime in our courts; and, as he would have to drag his wife or paramour through no less than three-- that of the police officer, the magistrate, and the judge--to seek it, he has recourse to poison, either secretly or with his wife's consent. She will commonly rather die than be turned out into the streets a degraded outcast. The seducer escapes with impunity, while his victim suffers all that human nature is capable of enduring”

“this is the situation even today. The stigma of adultery sticks with the woman. It is regarded as morally reprehensible...if adultery (as an offence) has its genesis in woman being the property of man, then it has to be struck down on this ground itself”, submitted the Senior Advocate, clarifying that her argument was confined to the criminality of Adultery and not in context of the civil law remedy where an adulterous wife stood to lose her alimony.

“The Wife of the perpetrator has no recourse against either her husband or the adulteress. She has no remedy under criminal law and can only file for divorce”, she continued.

Repeating how sexual intercourse of a married man with an unmarried woman or even with a married woman, with the consent or connivance of her husband, did not amount to adultery for the purpose of section 497, Justice Chandrachud noted that the provision validated the sexual autonomy of a man.

In as much as the section speaks of the consent or connivance of the husband of the adulteress, Justice Nariman weighed in that it brings to mind the property law concept of licensing.

There was also a discussion on former Bombay High Court Chief Justice M. C. Chagla’s observations on section 497- that it should not find a place in any modern Code of law, that the Days when women were looked upon as property by their husbands are past, and that it was an argument more in favour of doing away with the provision altogether and not in support of the contention of under-inclusion of women even as an ‘abettor’.

Ms. Arora had also urged that the earlier ruling of the Supreme Court in Sowmithri Vishnu case be considered on the facet of sexual autonomy.

“Something which is morally improper may not necessarily be a crime”, reflected Justice Chandrachud. Continuing down the same line of thought, Ms. Arora cited Lord Macaulay’s observation that while a rich man denying bread to a hungry person is morally more wrong, it is not a crime, but if the poor, famished person snatches that bread, it amounts to theft.

“If a marriage has broken down and a party engages in sexual intercourse outside the marital tie, you cannot criminalise that person...however, the sexual autonomy inherent in us is not absolute and that adultery is a ground for divorce is a reasonable restriction on that autonomy...decriminalising adultery would not have the effect of licensing it”, noted Justice Chandrachud on Thursday.

“Most countries across the world have done away with adultery, including our neighbours Bhutan, Sri Lanka and China”, submitted Ms. Arora.

“The notion of injury to man’s property is now obsolete...in as much as the Centre has in its affidavit contended that section 497 is necessary for maintaining the sanctity of marriage, the institution of marriage cannot curtail the parties’ right to separate...the state’s interference in private, matrimonial matters is not acceptable; these are matters to be left between the husband and wife...and lastly, marriages are intimate family affairs which cannot be preserved under a threat of criminal prosecution”, she summed up.

In this context, she placed reliance on the 2015 decision of the South Korean Constitutional Court decriminalising adultery and observing that the maintenance of marriage and family life should be left to the free will and affection of the parties and that even if adultery is morally condemnable, there may not be any intervention by the State power.

On the right to equality, she submitted that section 497 criminalises adultery based on the sex and marital status of women, the classification having no reasonable nexus with object to be achieved. The provision perpetrates  discrimination in so far as the consent or willingness of the woman is irrelevant while the lack of consent of the husband is an ingredient of the offence. Further, the sole right to lodge a complaint under the section lies with the husband of the adulteress, while the woman is precluded from setting the law into motion. Finally, while sexual intercourse of a Married woman with an unmarried men is criminalised, such a relationship between a married man and an unmarried woman is exempted.

In his turn, Advocate Sunil Fernandes, appearing for an intervenor, urged that the bench strike down section 497 not only on the touchstone of Article 14 but also Article 21 with a view to preempt the Centre from introducing a gender-neutral law to criminalise adultery.

The hearing concluded for the day with Justice Chandrachud repeating that one retains their sexual autonomy to an extent even after marriage and that the right to say “no” is not forfeited by marriage.