Day 1 Arguments, Afternoon: 2nd August, 2018
The post lunch session began with Mr. Raj closing his submissions. He argued for decriminalisation of adultery as it violates the right of sexual autonomy and freedom of intimate association. Justice Misra requested Mr. Raj to refrain from attacking the institution of marriage.
Ms. Meenakshi Arora representing the intervenor, Partners for Law in Development, commenced her arguments. She argued that adultery is based on the premise of treating a woman as a man’s property; it was historically seen as theft of property.
Ms. Arora argued that adultery provision in its current form gives very little autonomy to a woman over her body; a husband retains control over a woman’s sexuality.
Ms. Arora referred to how rape was intricately linked to property. Historically when the rape was criminalised, women who were abducted had to hand over her husband/father’s property to the abductor.
Adultery is based on patriarchal origins. Ms. Arora referred to Blackstone's comment that "adultery is the highest form of assault on property".
Referring to the origins of adultery in the IPC, she said that common law considered it to be a spiritual offence and not a crime. Macaulay was of the opinion that no one will report the crime: he believed that there are worse moral wrongs than adultery like a wealthy man refusing food to the poor.
The Second Report of the IPC noted that adultery was required to ensure that natives do not seek revenge using extra-legal means. Furthermore, the report noted that wealthy people were more likely to poison their wives who would gladly accept. Justice Nariman observed that it also reflected a seducer-victim mindset.
Ms. Arora argued that the offence is predicated on lack of consent. She held that the wife of another husband could avail only civil remedies but not recourse to criminal law. Justice Chandrachud observed that it recognises sexual autonomy of men and denies it to women. Justice Nariman added that the concepts of property law like bailment or licensee had been transferred to adultery. Justice Chandrachud observed that decriminalizing adultery doesn’t imply that it is moral.
Ms. Arora submitted that adultery is not in tune with a woman’s equal status within marriage. She referred to the constitutional courts’ cases in South Korea and Bhutan to argue that the state has no business to legislate in private domain. She added that countries which still retain the law on the statue books are not progressive with respect to women’s rights.
Ms. Arora argued that adultery is a violation of fundamental rights. She referred to Justice Chandrachud’s opinion in Puttaswamy which held that intimate rights form a part of right to privacy. At this point, the judges engaged in a conversation regarding the aspect of right to privacy vis-a-vis adultery.
Ms. Arora referred to the aspects of decisional privacy; the most intimate decisions are with respect to sexuality. Justice Misra queried whether she wanted adultery to be removed as a ground of divorce. Ms. Arora answered in the negative. Justice Misra further pressed that if sexual autonomy is considered a fundamental right, it will have to go as a ground for divorce also.
Justice Misra then queried whether adultery can be considered as a form of mental cruelty. Ms. Arora answered in the affirmative. Justice Chandrachud added that adultery as a criminal offence was too overbroad but it is a reasonable ground for divorce.
Ms. Arora argued that the state should not intervene in intimate and private matter which is best dealt with by the two parties involved. She argued that all moral wrongs cannot be corrected by criminalizing it. There is no violation of legal interests and state power should not intervene between two adults when the interests of the society are not harmed.
Next, Mr. Sunil Fernandes appearing for an intervenor started his arguments. He began by alluding to the counter-affidavit of the Union where they submitted that Section 497 aims to preserve the sanctity of marriage. He argued that there are provisions on adultery in the personal laws dealing with marriage which protects the sanctity of marriage. Accordingly, Section 497 cannot be considered the sole repository for protecting the sanctity of marriage.
Mr. Fernandes argued that adultery is a violation of fundamental duties under Article 51A(e) which refers to the dignity of women. Referring to portions of Lawrence v. Texas dealing with the private lives of two consenting adults, he argued that it would hold true even if the word homosexuality was substituted by adultery in those areas.
Mr. Fernandes asserted that adultery violates freedom of choice, dignity and privacy. Justice Misra queried whether a woman has a choice to fall in love outside wedlock. Mr. Fernandes countered that when a woman is treated as chattel, her right to dignity is affected.
Justice Chandrachud enquired if a woman can be deprived of a life of dignity in case of an abusive relationship. He added that it is important to recognize that in broken marriages, people lead their respective lives irrespective of the provision on adultery. He drew an analogy with the fact that since the right to sexual autonomy is retained even after marriage, it should also apply to adultery.
Mr. Fernandes concluded by arguing that gender equality should be considered a part of the basic structure.
The bench rose for the day and the matter will be heard next on 7th August.
(This report has been prepared by Mr. Samya Chatterjee.)