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Supreme Court verdict on adultery opens door for fuller understanding of women’s equality

Justice DY Chandrachud cites extensive sources to demonstrate that denial of sexual agency was necessary within marriage to ensure purity of bloodline and lineage.

opinion Updated: Sep 28, 2018 08:33 IST
Madhu Mehra
Madhu Mehra
Hindustan Times, New Delhi
adultery,adultery verdict,Supreme court
The unanimous five-judge verdict of the Supreme Court in ‘Joseph Shine vs Union of India’ did more than just strike down adultery as a criminal offence.(AP Photo)

The unanimous five-judge verdict of the Supreme Court in ‘Joseph Shine vs Union of India’ did more than just strike down adultery as a criminal offence. Flawing the law not just for being discriminatory, the judgment upheld sexual agency, autonomy and equality of spouses within marriage. In recent times, the court has contextualised privacy as embodying the right to choice of spouse and sexual autonomy for Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) people in the Shafin Jahan and Navtej Johar verdicts respectively. In Joseph Shine, the court affirmed women’s sexual agency and autonomy, within and outside of marriage, on an equal footing as an inviolable aspect of the rights to liberty and privacy.

The offence of adultery conferred upon the husband the power to prosecute the man with whom his wife commits adultery, except if he consented or connived in the act. Despite being patently discriminatory, the law survived several constitutional challenges on the illusory grounds that it protected the wife and the institution of marriage. Women’s sexuality, much less agency and autonomy, found no mention in the earlier constitutional challenges. This is why the verdict in Joseph Shine is constitutionally significant and necessary. Not only does it affirm the right to privacy in the context of sexual agency of women within marriage, but the judgment also clarifies that privacy cannot be a shield when it comes to protecting women from domestic violence.

Laying bare the oppressive scriptural, socio-legal roots of adultery, the judgment clarifies the reasons why the offence never intended to benefit women or the institution of marriage. It was merely a legal means to enforce patriarchal ownership over the wife’s body and sexuality.

Like land, cattle and crop, girls and women across societies were subsumed within the estate of their fathers, and after marriage, within that of their husband. Tracing the Judeo Christian, Islamic and Hindu scriptural codes that confer patriarchal regulation of women’s sexuality, the judgment elaborates on the oppressive nature of adultery law.

Justice DY Chandrachud cites extensive sources to demonstrate that denial of sexual agency was necessary within marriage to ensure purity of bloodline and lineage. As feminist writings in the Indian context have shown, the regulation of female sexuality was necessary to ensure purity of caste and thereby maintain the structure of gender and caste inequality. Rather than protect the family, as is erroneously claimed, the adultery law affirms purity of caste-based bloodlines and transmission of privilege and property along caste lines.

The real infirmity lies not in the oppressive social values themselves, but with the state using the force of law to entrench gender inequalities and oppression.

The Supreme Court rightly held that exacting fidelity through the adultery law is not sanctioned by the constitutional mandate to protect women, or indeed, the preservation of the institution of marriage. While being significant in itself, this verdict finally opens doors to a fuller understanding of women’s equality within marriage – including for seeking protection against sexual violence and claiming economic rights free of conditions of chastity by women from their spouses.

(The writer is the executive director of Partners for Law in Development, a legal resource organisation on women’s rights, one of the intervenors in the PIL on adultery)

First Published: Sep 28, 2018 07:15 IST