NEW DELHI: The husbands of our country have lost a battle of ownership and proprietary rights over their wives which they had enjoyed for over 150 years.

The idea of woman sacrificing her legal rights in favour of her husband upon marriage and giving him the right to control over her body has now been declared to be a gross violation of constitutional morality, even though the notion enjoys strong support from the society.

The adultery law, contained in Section 497 of the Indian Penal Code and Section 198 of the Criminal Procedure Code, has failed the test of Articles 14, 15 and 21 of the Constitution and thus has been declared by the Constitution Bench of the Apex Court to be unconstitutional.

The decision highly condemns the provision of adultery law which, on its face, appeared to be a protective piece of legislation intended to preserve the sanctity of the institution of marriage, as had also been held so by the courts in earlier cases challenging this law. However, unanimously overruling all the previous judgments, the Supreme Court in Joseph Shine v Union of India has highlighted the underling subordination, discrimination and chauvinism inherent in the legal framework.

Originally conceived as the highest invasion of property rights, Section 497 made it a punishable offence for a man to have sexual intercourse with a ‘wife’ of another man without the consent of such man and this lack of consent by such man made him the aggrieved person under Section 198 CrPC.

Terming it as “extremely harmful”, the Supreme Court noted that the provision existed “for the benefit of the husband, for him to secure ownership over the sexuality of his wife” and “aimed at preventing the woman from exercising her sexual agency”.

Even though women were exempted from prosecution under Section 497, “the power to prosecute lied only with the husband and not to the wife in cases where her husband commits adultery”, and it was only based on the element of whether the husband had consented to the alleged adulterous act. This also meant that if a married man had sexual intercourse with an unmarried woman or a widow he did not commit the offence of adultery as she did not have a husband to consent.

This requirement of consent by the husbands rendered them to be the masters of their wives exercising control over the bodies of their wives and hence had the right to prosecute any person who interfered with his control. It also entailed that the wives being the “passive entity bereft of personal autonomy” needed protection of their husbands from any such outsiders.

This had placed men at a higher pedestal than the women in the institution of marriage and thus the Court found infringement of Article 15 of the Constitution which prohibits any discrimination on the ground of sex. The element of manifest arbitrariness was also highlighted by the Court in the act of treating “a woman as a possession of her spouse” as being in complete contrast to the constitutional ethos of liberty, dignity and equality.

The Court also dealt at length with the issue of criminality of adultery and found it to be “immense intrusion into the extreme privacy of the matrimonial sphere” and held that “to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two”.

The act of adultery, which means a loss of moral commitment of the spouses towards each other, was held by the Court to be a ground for divorce as it is for the parties to deal with the situation, rather than criminalisation which would be a “retrograde step”, “extremely inapposite” and “unwarranted in law”.

This decision, however, is being criticised by few on the ground that decriminalisation of adultery would mean licence for the men to be unfaithful to their wives as there is no longer a deterrence of criminal prosecution to keep them within check.

It is also being argued that the Court should have made the offence gender-neutral rather than decriminalising it. However, firstly, the court only has the power to strike down a piece of legislation for being unconstitutional and it cannot re-enact or legislate, and secondly, the answer to this reservation would be that criminalising a consensual act between two individuals is no way of forcing obedience towards the spouse in a marriage.

By being able to prosecute the erring spouse, the aggrieved wife or the husband would never be able to rebuild the matrimonial ties and the best recourse in such situation would be provided under the matrimonial laws. The best way to preserve the social fabric is not through excessive criminalisation but granting autonomy to both the parties to decide the course of action for their marriage and to take recourse to matrimonial laws, if required.

Moreover, misuse of a particular act, to me, does not mean retaining it on the penal code and there is a need to bring in a change in the mindset rather than forcing obedience through the threat of prosecution.

The Supreme Court, through this decision, has definitely upheld the civilised notion of “marriage of the equals” which has no room for a subservient chattel lacking individuality and carrying the burden of the honour of the entire family. However, it’s a move towards progression which would necessitate an equal force of change in the societal norms for this equality to be truly substantive.