Do Women Have the Right to Fall in Love Outside of Marriage, Asks SC

The bench brought up several absurdities in India's adultery law.

New Delhi: A constitution bench of the Supreme Court hearing challenges to the constitutionality of Section 497 of the Indian Penal Code found itself addressing a question which had not been envisaged earlier: Do women have the right to fall in love outside a marriage? The bench comprises Chief Justice of India Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The question arose in the context of the mandate of Section 497, which is clearly discriminatory. First, it decriminalises the offence of adultery if the husband of the woman in the adulterous relationship with another man connives or consents to it. Second, while it punishes a man committing adultery to imprisonment for five years, it makes it clear that the wife shall not be punishable as an abettor. Third, it does not criminalise adultery if the husband has consensual sexual intercourse with an unmarried woman, whereas a married woman having similar relationship with a bachelor may find her paramour being punished for the offence. As Justice Indu Malhotra pointed out, the underlying idea is that wives are the property of the husbands. “It can’t find a place in modern code of law,” she observed.

Section 198(2) of the Code of Criminal Procedure, which is also under challenge, deprives the wife of her right to make a complaint if her husband commits adultery. It does this by providing that no person other than the husband of a woman shall be deemed to be aggrieved by the offence of adultery or seduction with criminal intent, which is covered under Section 498 of the IPC, which too assumes that only a man can seduce a married woman with criminal intent.

The hearing before the bench on Thursday, while bringing these absurdities in the provisions to light, gave an unexpected twist to the debate by asking whether women in India have a fundamental right to indulge in adultery, even if the offence is a valid ground for obtaining divorce from one’s spouse.

Chief Justice of India Dipak Misra, who heads the bench, told the counsel for an intervener, Sunil Fernandes, that the question of whether women have a right to fall in love outside a marriage is different from the observation that it happens.  Justice Nariman expressed his doubts about whether the right to dignity, a facet of the right to privacy, could be stretched to justify adultery.

It was Justice Chandrachud who gave an interesting spin to the whole debate on whether such a right exists. According to him, if a woman has a violent and abusive husband, justifying such a right is not far-fetched. “This is the hard fact of Indian social life. If the husband, who is violent and abusive, is not giving her a divorce, and depriving her of her right to a life with dignity, can her sexual autonomy be denied?” he asked.

By decriminalising  adultery, the court can remove the stigma which erodes a woman’s right to dignity, but the bench took note of the fact that adultery is a ground for divorce for both spouses. Therefore, the bench felt that the right to say no even in marriage would protect a woman’s sexual autonomy, which has been held as a facet of the fundamental right to privacy in the recent Puttaswamy judgment of a nine-judge Supreme Court bench. The bench, however, cautioned the counsel that sexual autonomy is not absolute. The restriction on adultery is a reasonable restriction, and a valid regulation, observed Justice Chandrachud.

While the bench is mulling over the issue of the contours of sexual autonomy of a married person, its observation that a woman has the right to say no even in a marriage has come as a bolt from the blue for those who are campaigning for declaring marital rape an offence. If the observation does indeed become part of the judgment in this case, it will have a profound influence on the hearings regarding the challenges to marital rape, ongoing in the Delhi high court.