The Supreme Court referring to the adultery law on Thursday said the law is discriminatory and it violates Article 14 as it punishes only the man and spares the woman portraying her as a victim. "Both parties in adultery derive the benefit of the act. Despite that one is treated as a victim and other is punished. There is no rationality in it", said Chief Justice Dipak Misra.
The court also referred, if a woman has right to say 'no', then it has to be accepted that she also does not lose her "sexual autonomy" after marriage, a Supreme Court judge said.
A constitutional bench, headed by Chief Justice of India, also comprised Justice D Y Chandrachud examining the penal law on adultery, also said that if a person indulges in an adulterous relationship, then this itself was an indicator of a "broken marriage".
A married woman, living in an almost broken relationship, does not lose her sexual autonomy just because she was married, the judge said. "When we accept that a woman has the right to say 'no', then we will have to accept that she has the right to sexual autonomy," Justice Chandrachud said.
Describing the provision as "manifestly arbitrary", the court asked if women were "chattels of husbands." Section 497 of Indian Penal Code whose validity has been challenged, says: "Whoever has sexual intercourse with a person who is the wife of another man, without the consent or connivance of that man, such sexual intercourse is guilty of the offence of adultery."
During the hearing, the court observed that "adultery as a ground for divorce can be viewed as a ground for reasonable restriction. So this wouldn't mean that there is no sexual autonomy. It only means there are valid limits to your sexual autonomy."
Senior counsel Meenakshi Arora appearing for a petitioner said, "If adultery has the genesis of women being the property of men, then on that basis, it has to be struck down." "As far as criminalisation or decriminalisation of adultery as an offence is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by an estranged couple in a court of law," the top court said.
"Mental cruelty is a ground for grant of decree of divorce. The question is whether adultery will tantamount to mental cruelty or not," Chief Justice Misra said.