“Any provision of law affecting individual dignity and equality of women invites wrath of constitution. It’s time to say that husband is not the master of wife. Legal soverignity of one sex over other sex is wrong”, read Chief Justice of India Dipak Misra from the judgment written by him and Justice A M Khanwilkar. The judgment on this issue was headed by other four member namely Justice AM Khanwilkar Justices RF Nariman, DY Chandrachud and Indu Malhotra.
Adultery is not a crime
Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man for having sex with wife of another man.
This all started when an Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory (unfair/ prejudiced).
"A woman cannot be asked to think as a man or as how the society desires. Equality is the governing parameter. All historical perceptions should evaporate, he added.
The bench further said it was on the view that there cannot be a patriarchal monarchy over the daughter or husband monarchy over the wife.
The adultery law first came into light in 1951 under the Yusuf Aziz vs State of Bombay case. Aziz argued that the adultery law violate the fundamental right of equality guaranteed under Articles 14 and 15 (Right to Equality, Article 14 provides equality before the law or equal protection within the territory of India, Whereas Article 15 provides prohibition of discrimination on grounds of religion,race,caste,sex or place of birth) of the Constitution.
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| Pic Courtesy: The Hindu |
The argument in the court hearing was for Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship. It was also argued that adultery law gave a license to women to commit the crime. Later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) (Nothing in this article shall prevent the State from making any special provision for women and children) that allows such a law.
Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is commonly accepted that it is the man who is the seducer, and not the woman." The Supreme Court stated that women could only be a victim of adultery and not a perpetrator of the crime under Section 497. However, despite declaring women as "victim only" in the occurrence of the crime of adultery, the court did not allow them to even file a complaint.
Next judgment regarding Section 497 was in 1985 Sowmithri Vishnu vs Union of India case.
In Sowmithri Vishnu case, the SC held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage.
The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law. The argument was that if an unmarried man establishes adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in a sexual intercourse with a married man, she would not be held culpable for the offence of adultery, even though both disturb the sanctity of marriage. |
| Pic Courtesy: The Hindu |
Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice. Society imposes impossible virtues on a woman. Raises her to a pedestal. Confines her to spaces. Objectifies her and says she should be pure. But society has no qualms to commit rape, honour killings, sex-determination and infanticide.
Another raging debate should be whether marital rape be criminalised. Considering developments in other developed and progressive countries as well as the fact that Indian society, too, has undergone changes, it is time to make marital rape a criminal offence.
Even though many countries around the world have taken such strong and progressive steps, India is one of the 36 countries where marital rape is still not a criminal offence and is untouched by the lawmakers of our country.
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