A series of judgments by the Supreme Court has imparted a big stimulus to the cause of women’s rights and brought a sense of sanity into one of the most-contested areas of jurisprudence in India, writes Priyanka Bhardwaj.
Along with the opening of gates of the Hindu Shrine of Sabarimala, located in the forested hills of the southern state of Kerala, to girls and women of menstruating age group, and the passage of an executive order criminalizing the practice of ‘triple talaq’ that allows Muslim men to divorce their wives instantly by saying the word ‘talaq’ three times in person, by text, or over the phone, the apex court has decriminalized adultery, though it still remains a civil offence and can be treated as a valid ground for divorce.
Adultery as specified in Section 497 of the Indian Penal Code (IPC) of the Indian Constitution formed a part of the original penal code as drafted in 1860, and thus was a reflection of the Victorian morality as upheld by the erstwhile British rulers.
The section specified that adultery was a crime, a punishable offence, and from what it stated, “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,” and, “…in such case the wife shall not be punishable as an abettor,” it was evident that it was entirely asymmetric in nature.
According to this law in any act of adultery, only the male participant was considered to be the offender, and the female participant was not even regarded an abettor.
Further, if a married man had sexual relations with an unmarried woman, this was not deemed as adultery.
And, in case the third party, that is the husband of the female participant “consented” to the sexual intercourse between his wife and another male, then this act of adultery could not be prosecuted.
In other words, the right to prosecute was vested with the married husband of the female participant.
When India gained Independence in 1947, this archaic, patriarchal and Janus-faced law, instead of being declared void, gained further legal sanction when in 1954, 1985, and then in 1988, the Supreme Court had upheld its validity on the logic that it protected women from criminal liability.
In simpler terms, men are “seducers,” and therefore criminally liable, and women are the passive party, ones who are the “seduced party,” and unable to account for their actions.
Also, a husband can be an aggrieved party, in any act of adultery, and never the wife.
This underlined the already prevalent inequality in other areas to the domain of family, in that a woman is a chattel or property, first of her father and of her husband, who acquires this right to her body and being at the time of marriage.
With the five-judge bench of the Supreme Court striking down this outmoded section, the position of a woman, in all purposes of law, society, home and family, has arrived at a whole new definition.
Now, the man will no more be the master of his wife or that a woman will no more be treated a “victim,” and thus attain sovereignty over her individual identity, as one responsible for her consent emanating from her free will, bereft of the shackles of patriarchy that had caged her earlier.
The four eminent judges – Chief Justice R.F. Nariman, D.Y. Chandrachud and Indu Malhotra agreed that since Section 497 falls foul of the Right to equality [Article 14], Right to non-discrimination on grounds of sex [Article 15(1)], Right to life and personal liberty [Article 21], and it needed to be scrapped.
Taking a forward on this issue, the judges also ruled that adultery cannot be criminalized even as it sought to retain the sanctity of marriage by allowing it to be a civil wrong, and a valid basis for separation, and, or divorce.
Most of these strong verdicts for egregious gender equality, as witnessed, have been the result of movements initiated and largely-advocated by women.
If the conclusions are that women are not properties or chattels and are to be regarded as individuals who have as much a right to enjoy all freedoms and rights as guaranteed as men, then they must neither be liable for male celibacy nor male desire.
In the area of sexual encounter too, whether marital or otherwise, a woman’s consent, therefore becomes an essential feature.
Hence, marital rape, hitherto not considered a crime, can be brought within the ambit of legal prosecution.
Therefore, for progression on enhanced empowerment of women, in line with the founding ideals of the constitution – which seeks to guarantee equality before law and non-discrimination on account of sex, women themselves will need to plan and initiate more such movements that will help nudge towards similar styled judicial interventions.