Justice DY Chandrachud: Respect for women’s sexual autonomy must be emphasised

The Supreme Court on Thursday, September 27, ruled that the adultery law, as it stands, is unconstitutional. It was a 150-year-old law which gave a husband the right to prosecute his wife's lover.

Unanimously, all the five judges CJI Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, quashed Section 497 IPC. The Bench wrote four separate but concurring judgments. CJI Misra wrote on behalf of himself and Justice Khanwilkar. Justices Nariman, Chandrachud and Malhotra wrote a judgment each.

Section 497 in The Indian Penal Code reads: “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

And as was the case in the Aadhaar judgement, Chandrachud comments denouncing patriarchy and upholding women’s rights must be noted. Incidentally, in striking down Section 497 IPC, Chandrachud had overruled his own father, Justice YV Chandrachud’s judgment, which had upheld the section.

10 takeaways from Justice DY Chandrachud’s judgement upholding rights of women

1. Section 497 is based on treatment of women as chattel. It seeks to control the sexuality of women; it hits the autonomy and dignity of women. It perpetuates the subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes.
2. Woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage cannot be curbed.
3. [In a section titled ‘good wife’] In the most private zone, choice is important and sexuality cannot be dissected from desire
4. The adultery law is a codified rule of patriarchy; Society attributes impossible attributes to a woman, raising woman to a pedestal is one part of such attribution.
5. Section 497 was destructive to a woman’s dignity. Autonomy is intrinsic in dignified human existence. 497 denuded the woman from making choices. Respect for sexual autonomy must be emphasised.
6. Marriage does not preserve ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage.
7. Justice Chandrachud indicated the impropriety of the section in so far as it exempts from criminal prosecution a man who has engaged in sexual intercourse with a married woman if the same transpires with the consent or connivance of the said married woman’s husband. This “attaches a certain deviousness to the Act”.
8. Bigamy is gender neutral. If a woman engages in sexual intercourse in a second marriage while the first is subsisting, it is punishable. But, Section 497 does not use same the yardstick as section 494 and this distinction makes the former unconstitutional.
9. Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman? “You exact fidelity from a woman but not from a man,” asked the Justice.
10. Towards the end of the hearing, Justice Chandrachud weighed in that making section 497 gender neutral would only address the issue of under-inclusion and that the real question is if adultery should be a criminal offence at all.