New Delhi: The penal provision on adultery curtails the sexual autonomy of a woman on the assumption that once she gets married, she "contracts away" her "sexual agency", Justice D Y Chandrachud Thursday said while striking down the anti-adultery law.
The judge, in his separate concurring judgement, said curtailing a woman's sexual autonomy or presuming lack of consent when she ties the nuptial knot is "antithetical" to constitutional values and marriage, whether sacrament or contract, does not result in ceding of the autonomy of one spouse to another.
Justice Chandrachud said Section 497 (punishment for adultery) of IPC is "a gender stereotype" that the infidelity of a man is normal but that of a woman is impermissible.
"Sexual relations by a man with another man's wife is therefore considered as theft of the husband's property. Ensuring a man's control over the sexuality of his wife was the true purpose of Section 497," he said.
The court said the ability to make choices within marriage and on every aspect concerning it are a facet of human liberty and dignity which are protected by the Constitution.
"In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage.
"Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14," it said.
The notion that with marriage, a woman consents in advance to sexual relations with her husband, or to refrain from sexual relations outside marriage without the permission of her spouse, is offensive to liberty and dignity and it has no place in the constitutional order, the judge said.
He said sexual autonomy constituted an "inviolable core" of the dignity of every individual who has the constitutional right of choice and the freedom to determine one's actions.
The judge said enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality and section 497 chains the woman to "ante-diluvian notions" of sexuality.
"Recognition of sexual autonomy as inhering in each individual and of the elements of privacy and dignity have a bearing on the role of the state in regulating the conditions and consequences of marital relationships. There is a fundamental reason which militates against criminalisation of adultery," the court said.
It said that criminal law must be in consonance with constitutional morality and section 497 is a denial of rights to dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 and held it unconstitutional.
The judge said the notion which the law propounds and to which it imposes the sanctions of penal law is that the marital tie subordinates the role and position of the woman.
"In that view of marriage, the woman is bereft of the ability to decide, to make choices and give free expression to her personality. Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute," he said.
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