SC should be hailed for decriminalising colonial-era Adultery law

The court bore allegiance to its transformative vision in Joseph Shine Vs Union of India, when it struck down the anachronistic adultery law. The law was not only governed by paternalistic beliefs, but it also totally disregarded the concept of autonomy of an individual.

While striking down the provision, CJI Dipak Misra placed reliance upon the privacy judgement where the court had acknowledged the autonomy of an individual and opined that the element of consent or connivance of the husband as prescribed in the section, subverted the position of women and were in violation of Article 21.

The section, as it existed, did not punish the act of adultery per se, rather it protected the propriety right of the husband over his wife. The wife was regarded as the property of the husband and in that regard, he was licenced to use her as a chattel or as a licensor of that chattel he could allow her to be used. The wife was not vested with any agency under the law and it was for the same reason that the third-party was regarded as the seducer and she was always the victim of the crime.

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Most often, it is argued that adultery is the reason for the failure of a marriage, however, it is to be understood that if the individuals in a wedlock have lost the moral commitment then any punishment which is inflicted upon a third-party is unlikely to change that situation.

While striking down the law, Justice Chandrachud extensively discussed about the 'sexual autonomy' and 'sexual agency' of a woman and how this section had commemorated the gender stereotype that only men possess 'sexual agency' as they are the seducers of the crime, and women, on the contrary, are devoid of any such 'sexual agency' and thus, they can only be seduced. Justice Indu Malhotra has relied upon the principles of criminal law to substantiate her stance and opined that the adultery law had no rationale when tested against the basic principles of criminalisation.

It is to be noted that, not all immoral acts are penalised, but it does not follow that those acts are considered righteous by the legislature. The state cannot intervene between the private matters of individuals and criminal sanctions cannot be imposed upon every act, and therefore, it was essential to declare such an antediluvian law, as 'unconstitutional'.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)