"Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values" This was the opinion given by Justice D.Y Chandrachud, who was part of the bench that delivered the judgement the case of Joseph Shine v. Union of India.
The landmark judgement was delivered by a five-judge bench of the Supreme Court, led by the former Chief Justice Dipak Misra. The unanimous decision was delivered by the Court, with four concurring opinions. Chief Justice Dipak Misra authored an opinion on behalf of Justice Khanwilkar also, whereas, Justice Indu Malhotra, Justice F. Nariman and Justice D.Y Chandrachud delivered separate concurring opinions. The Apex Court held that Section 497 of the Indian Penal Code, which criminalized adultery, was archaic and arbitrary as it only punished men for the offence of adultery and categorised women to be their husbands' chattels.
While agreeing that Section 497 should be struck down, Justice Chandrachud opined that enforcement of fidelity of a wife by curtailing her sexual autonomy is an affront to the fundamental right to dignity and equality. Sexual autonomy, he further explained, includes the woman's choice to have consensual sexual intercourse with anyone outside of her marriage. This, he stated, was an essential aspect of Article 21 and could not be curbed.
While referring to the judgement given in the Navtej Singh Johar v. Union of India case, Justice Chandrachud stated that the right to sexual autonomy is an important facet of individual liberty. Furthermore, the Court had previously declared that the right to choose your own sexual partners is a fundamental right enshrined under Article 21. Hence, both men and women have the right to choose their sexual partners.
The fundamental question that arises here is whether spouses have the right to sexual autonomy outside of their marriage? Is their act of adultery protected under the right to sexual autonomy? Was it necessary to consider the question of sexual autonomy of a spouse outside of marriage to strike down a provision that was ex-facie discriminatory?
RIGHT TO SEXUAL AUTONOMY & TRADITIONAL INSTITUTION OF MARRIAGE
Declaring the offence of adultery as unconstitutional means that committing the act of adultery is no longer a punishable offence, but it is still a civil wrong and hence, it remains a valid ground for divorce. Justice Chandrachud, in the judgement held that the right of women to make "intimate personal choices" does not cease to exist once the woman enters into a marriage. Holding that right to sexual autonomy outside of marriage is a fundamental right and that a person is allowed by the Constitution to have extra-marital affairs, would nullify the purpose behind having adultery as a ground for divorce.
When a spouse partakes in an adulterous relationship, he or she is destroying the trust and the faith on which the institution of marriage has been built. So, when it is stated that right to sexual autonomy is a fundamental right and that a person has the right to choose their sexual partners outside of their marriage, it becomes unfair to ask the aggrieved spouse to accept the new definition of marriage by a court. Furthermore, by stating that there exists a fundamental right to sexual autonomy, it indicates that adultery is being permitted by the law. This would imply that a person is free to indulge in adulterous relationships, under the protection of the Indian Constitution.
Different religious personal laws have also condemned adultery and have meted out certain punishments and consequences that the adulterer will have to face. Adultery, across religions, has always been seen as immoral and is considered to be a sin, be it committed by a man or a woman.
In India, section 13 (1) of the Hindu Marriage Act, 1955 lists adultery as a valid ground for divorce. The section defines adultery as a person having sexual relations with a person who is not their spouse. Along with that, Section 10 of the statute also states that adultery is a valid ground for judicial separation.
In Islam, adultery is considered to be a grave offence and the Qur'an prescribes that the adulterer be punished by means of being stoned to death. However, most democracies like India consider this to be inhumane and have different laws regarding adultery.
The Dissolution of Muslim Marriages Act, 1939 does not expressly state that adultery is a ground of divorce, but Section 2 (viii)(b) of the Act states that if a man associates himself with a woman of "evil repute", the wife can sue him on the grounds of cruelty, but not explicitly on the grounds of adultery. However, adultery is still considered to be a terrible sin in Islam.
The Indian Christian Marriage Act, 1872 states that for a couple to get a decree of divorce, they first had to get their marriage annulled by the Church. Then, they had to approach the Court to get divorced. The statute had earlier mentioned that adultery cannot be the sole ground for divorce. Adultery, the statute states, must be coupled with other reasons such as cruelty. Adultery alone cannot be a ground of divorce, but it can be a ground for judicial separation. However, in the case of Ammini E.J v. Union of India, the Kerala High Court explicitly stated that adultery by itself is a valid ground of divorce under Christian personal laws and demanding otherwise would be a direct violation of Article 21 of the Constitution, which enshrines the right to life and personal liberty.
In addition to this, the Special Marriage Act of 1954 also recognizes adultery as a valid ground for divorce.
The traditional institution of marriage rests upon principles of trust, companionship and most importantly, fidelity. Fidelity is integral to the definition of the institution of marriage since ages in almost all cultures and societies. Therefore, stating that women have the autonomy to choose another sexual partner apart from their husband while being married, is redefining the institution of marriage. Another important point to note here is that while declaring the right to sexual autonomy of married as a fundamental right, Justice Chandrachud failed to clarify the reasonable restrictions that should be placed upon this right, as no right is absolute in nature.
Justice Chandrachud's reference to sexual autonomy could be construed as a reference to autonomy within the institution of marriage. It could be construed as an attempt to convey that a woman has the right to refuse to partake in sexual intercourse with her husband, implying that marital rape is wrong. For instance, the Kerala High Court, in a landmark judgement, ruled that marital rape is a ground for divorce. In the said judgement, the High Court has explicitly recognized that marital rape is wrong, without leaving any space for ambiguity and misinterpretation. But, given the fact that marital rape was not an issue in discussion in Joseph Shine's case, Justice Chandrachud's reference is obviously to sexual autonomy outside of marriage.
The decriminalization of adultery is a welcome move. There is no doubt that the provision was discriminatory and denuded women of their dignity. It is injustice to deny autonomy only to the wife. However, stating that women or for that purpose men have the fundamental right to have extra-marital affairs is to redefine the institution of marriage. It is not for the judiciary to partake in such an exercise. Absolute sexual autonomy is available only to unmarried individuals. A live-in relationship is an option available for men and women who do not wish to enter into the well-defined institution of marriage. By voluntarily getting into the institution of marriage, some liberty will have to be surrendered by both spouses. More importantly, it was not necessary for Justice Chandrachud to consider the question of sexual autonomy of a wife outside of marriage as various other legal grounds were available for striking down Section 497.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents.]