New Delhi: "Do you want us to say that a woman has a fundamental right to have a relationship outside marriage?" asked Chief Justice of India Dipak Misra.
Pat came the reply — from Justice RF Nariman: "I think what he (lawyer) means to say is that the right can relate to her right to dignity under Article 21."
Justice DY Chandrachud entered the deliberation. "Consider a situation where woman who is abused, beaten up and is traumatised by her husband who is not even willing to give her divorce. And there are scores of such cases because this is one of the harsh realities of our society. Should a woman lose her right to find solace in some other man for her entire life?"
Interestingly, the arguments in the Supreme Court over the validity of the adultery law witnessed an apparent division of views among the five-judge bench.
The judges seemed divided on the aspect of sexual autonomy of married women.
The CJI and Justice AM Khanwilkar repeatedly asked the lawyers, including Kaleeswaram Raj and Sunil Fernandes, to steer clear of the arguments over sexual autonomy and right to make choices by a married woman.
"Do not attack the institution of marriages. Don't forget adultery is also a ground for divorce," emphasised the two judges.
They also stopped lawyers from relying upon a judgment from the US court on sexual autonomy of married women, saying "our values are different".
On the other hand, Justices Nariman and Chandrachud displayed a divergent outlook on sexual autonomy of married women.
When Fernandes argued that making adultery a criminal offence was also an affront to a woman’s right to dignity and her right to make choices, the CJI did not take the submission well but Justice Chandrachud differed.
"Is your right to sexual autonomy is lost because you are married? In my opinion, you don't. You have a right to say ‘No’ even after you are married. Your sexual autonomy will be affront if you don't have the right to say ‘No’," said Justice Chandrachud.
Justice Nariman added that marriage has nothing to do with a woman's right to dignity and the right to make choices inheres in this right.
At the same time, Justices Nariman and Chandrachud clarified that their views on sexual autonomy should not be misunderstood.
"It is not that if we decriminalise adultery, we are encouraging married young men and women to do anything," said Justice Nariman, adding that the civil consequences such as adultery being a ground for divorce would still constitute as 'reasonable restriction' on the right to make sexual choices by a married person.
Justice Chandrachud said:" Look… Even otherwise these things are happening in our society. It is better that we recognise it and make our laws in sync with time."
The fifth and the only woman judge on the bench, Justice Indu Malhotra did not make any observations on this aspect.
The hearing on Thursday remained inconclusive. It will resume on when the central government will be called upon to explain its rationale behind defending Section 497 of the IPC.
Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody's wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.
Another peculiar aspect of Section 497 is the fact that the fulcrum of the offence is gone if consent or connivance of the husband can be established.
On a petition by Joseph Shine, the Constitution Bench is examining the validity of Section 497.
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