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Dusting off archaic Adultery law: Moral vs legal


“Autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past. Legislature has imposed a condition on sexuality of women by making adultery as offence. Section 497 is a denial of the substance of equality.”

-DY Chandrachud

 

What is moral may not necessarily be legal! Case in point is the five bench Supreme Court judges struck down the archaic Adultery law under the Indian Penal Code 1860 criminalizing sexual relationship between a man and a married woman without the consent of the former’s husband.

In modern times, it is bizarre that as a country, such law owing to the Victorian Era was in force till yesterday when putting to the fore the principle of free will and freedom vs discrimination, unequal rights and the violation of dignity stacked against women. This offense called Adultery is a by-product of a patriarchal society where a woman has no right when it comes to her body and decided by a man, in this case, the husband. The by-gone law implies that only a man could prosecute a woman and albeit, no case if adultery is done with the husband’s approval. There is something called consenting adults when it comes to relationships between two individuals who own their respective bodies.

Image source: Google.

After decriminalizing homosexuality, the judgment striking down adultery comes as a breath of fresh air when there is a rampant debate about women’s sexuality, freedom of choice and equality. We have witnessed several instances where women facing all kinds of discrimination and assault, sexual in nature or imbalance equation when it comes to gender equality. As one reads the judgment, an impression is built on the reasons why a woman has no say when it comes to her body and only the husband can take the plunge as if he owns the wife. The question of sexual autonomy arises in a democratic and plural society like India that doesn’t need a Panchayat mentality who will decide whether a woman has committed a crime or not. For once, we must chuck out all moral arguments when it comes to equality, right for choice and freedom. It’s not a question of for or against whether it’s adultery, homosexuality or abortion for that matter but rather Pro-choice arguments must make the cut. No society can afford to treat women like a doormat where she is denied the fundamental legal rights and rightfully, the bench comes to correct a grave injustice in our society. Till the law criminalized adultery, women were denied basic human and dignified rights in making a decision when it comes to their personal lives.

Let’s get it straight:  The SC made a thought-provoking point in the judgment that women are no chattel that should raise an even bigger but sane argument on whether the lack of sexual satisfaction should be a valid ground for divorce. What if the claim was made by a woman in court in contrast to a man having the right to prosecute when it comes to adultery? The devil lies in the details. It’s simple: One doesn’t need coercion to prevent a couple, either a man or women to indulge in an extra-marital relationship for if it does happen, then there is something terribly wrong in a marriage. No law can save a marriage and the sheer legality cannot act as a deterrence to divorce. One cannot and shouldn’t be prosecuted for sex which makes it an extremely ridiculous argument now confined to the past relics or stone age.

There should no law that repress a woman be it her freedom of choice or sexual right for that matter hinging on privacy. The learned judges and the Supreme Court is on a spree to correct anomalies that have shamed us as a nation. The fundamental denial of right is being corrected which augurs well for us where patriarchy has always gained an upper hand. Time for us to discard this suppression of fundamental rights for no man can decide what is right and wrong or moral and immoral for a woman. We can look up at the recent judgment to trigger a revolution that would make marital rape a crime and again the Triple Talaq ordinance remaining a crime remains a mystery. The paradox is that Triple Talaq as an offense denies fundamental rights to women.

Judge Dipak Misra observed: “Adultery might not be the cause of unhappy marriage, it could be a result of an unhappy marriage.” It’s a very telling statement that must propel discussions on the principles of free will, equality, choices or sexual rights in a patriarchal society where the rules benefit men. Where does the woman stand? Yes! She is not a chattel but a citizen whose rights is ensured by the Indian Constitution. The Supreme Court stood tall as a pillar of democracy guaranteeing freedom and equality representing, I, Me and You at a time where our values are increasingly under scanner.

 

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Author:

Work-in-progress, seeker and bundle of contradictions. Stubborn and Refusal to grow up and constantly in search of myself, I blurt it out on my space. Drop in and share some love. Indian by choice.

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