Sweeping across the courts in India is a ringing change in perspectives that has impacted judgments and made the courts into support systems. In May this year, the Kerala high court brought in equality in marriages when it allowed lesbian couple Adhila Nassrin and Fatima Noora to live together despite objections from their families. During the hearing of the petition filed by Nassrin, the court, in a progressive stance, stated that there was no reason to hold them back as they were consenting adults.
While same-sex marriage is not legally recognised in India, there is no statutory or constitutional provision restricting it either, say legal sources. The court observed, “Intimacies of marriage including the choices which individuals make on whether or not to marry and whom to marry lie outside the control of the state.”
While the courts permitted live-in relationships of same-sex couples, there was another landmark judgment which decriminalised a section of the Adultery Law, allowing estranged or other heterosexual couples in adulterous relationships to live without fear of penal action. The decriminalising of Section 497 of the Indian Penal Code (IPC) also indicated that there has to be a shift in the mindset that looks upon the husband as master and the wife as his commodity.
In September 2018, the Supreme Court struck down Section 497 of the IPC, which criminalised adultery. The five-judge bench of the Apex Court comprising Chief Justice of India Dipak Misra, and justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, were unanimous that the adultery law was “unconstitutional” and deserved to go. The court stated that the law that made adultery an offence was archaic, discriminated against women and was a clear violation of fundamental rights.
In the Joseph Shine vs. Union of India (2018) judgment, the SC also affirmed the rights of women to exercise their sexual freedom in personal spaces. The court had declared Section 497 of the IPC—which gives the husband the exclusive right to prosecute his wife’s lover, even as the wife was denied the right to prosecute the woman with whom her husband has committed adultery—as unconstitutional. CJI Misra then observed that Section 497 treated a married woman as nothing more than her husband’s property, as adultery is only an offence when it happens without the consent of a married man, with the woman having no say in the matter. He also said that adultery may not be the cause of an unhappy marriage, but could be the result of an unhappy marriage.
For several years, Tina (name changed to conceal identity) had lived in fear that her estranged husband could send her to prison. They had been separated for nearly 11 years, but not divorced. Though both had other partners and were in live-in relationships, Tina’s estranged husband had made the divorce proceedings extremely acrimonious, contesting and challenging every step of the way. The muck-raking from both sides was so terrible that the lawyers from both sides had quit midway into the court hearings.
Speaking to Outlook, Tina says she is not bothered about pursuing the case, but won’t withdraw it. Since the lawyers exited, neither Tina nor her estranged husband has got new legal help. “I have stopped pursuing the case. He is so angry that he finds some new allegation every time. Basically, he does not want me to get the divorce. He does not want me to get married again. I do not want a rupee from him, I have my own money. Since my partner and I do not want to get married and prefer a live-in relationship, I am not even pursuing the divorce. Let it just be there,” she tells Outlook.
Until some years ago, her estranged husband had threatened to get her arrested for adultery. “He too has a live-in partner, but he would keep telling me from time to time that I could not do anything to him. I did not know the law, so I always lived in fear of going to jail,” she says. It was only after she was involved in a new relationship that she sought legal help on understanding the adultery law. “My friend is a lawyer and it is she who told me that I cannot go to jail. Now I am breathing easy,” she adds.
For those like Tina, the 2018 Supreme Court judgment decriminalising Section 497 of the IPC is a huge relief.
In his ruling, Justice Chandrachud had observed that autonomy is intrinsic to a dignified human existence and Section 497 denudes women from making choices, holding adultery as a relic of the past.
The Apex Court had set aside three of its earlier rulings when decriminalising Section 497. The Adultery Law was first challenged in 1951, in the Yusuf Aziz vs. State of Bombay case. The argument had then centred on Section 497—which governed the adultery law—stating that it discriminated against men by not making women equally culpable in an adulterous relationship. The petitioner’s argument was that the adultery law gave the women a licence to commit the crime. Three years later in 1954, the SC had ruled that Section 497 was valid. It had observed that the said section of the IPC did not give women the licence to commit adultery.
In 1971, the 42nd Report of the Law Commission of India had recommended amendments to the adultery law. Several years later, the Malimath Committee on Criminal Law Reforms (2003) too had recommended reforms to the contentious section of the IPC and to make it gender neutral.
The second judgment of the SC came in 1985, in the Sowmithri Vishnu vs. Union of India case. In this ruling, the SC had held that women need not be included as an aggrieved party in the name of making that law equal-handed. The SC had also explained the reasons why women should not be involved in the prosecution in cases of adultery.
The third SC judgment was in 1988, in the Revathy vs. Union of India case. The SC then observed that not including women in prosecution in cases of adultery promoted “social good”. The ruling offered couples a chance to “make up” and keep the sanctity of the marriage intact.
Speaking to Outlook, Pramod Patil—an advocate practicing at the Bombay high court—said decriminalising Section 497 was a step in the right direction. “Earlier, the husband was the complainant and the paramour of his wife was the accused. In adultery, while the paramour could be punished, the woman couldn’t even be made an abettor. If the paramour had a wife, she too couldn’t file a complaint against her husband. However, after decriminalising, the husband can’t file a complaint against the paramour. The court has held that they are consenting adults and have the right to choose their partners,” says Patil.