[dropcap]I[/dropcap]n the just-concluded hearings before the Supreme Court in the case concerning the determination of the constitutionality of Section 497, IPC, i.e., the provision criminalising “adultery”, a question has arisen whether it is permissible for the State to impose criminal law and send someone to jail merely because they engage in consensual sex? On the other hand, the Delhi High Court is in the process of adjudicating on the substantial question of law on whether married women shed their rights to choose/consent and be free from rape simply by getting married? The common parlance in both the situations is with respect to lack of value given to the consent of women, particularly married women in matters of sex.

Right to say ‘no’ after marriage

Justice DY Chandrachud has pointed out in the adultery hearing while intervening during the arguments put forth by Advocate Sunil Fernandes, that women should have the right to say “no” in a marital relationship. Similarly, the Delhi High Court has asserted during the course of the hearings in the matter concerning criminalisation of marital rape that, marriage doesn’t mean that the wife should always be willing to consent to have physical relations with her husband. In the light of these remarks and observations made by the Apex Court and the Delhi High Court, an interesting link between the decriminalising of adultery and criminalising of marital rape is found which is contemplated in the consent of the married woman and her right to have sex of her own volition, with a partner of her choice.   

Choice versus Right

Even CJI Dipak Mishra couldn’t refrain himself from observing that, “When there is connivance or consent, there is manifest arbitrariness. You have built on the aspect that the Parties engaged in adultery derive the benefit of the same act. One is treated as a victim and another as accused. There is no rationale behind this. The situation is a tripartite jungle.” With regard to the rationale attached to the provision of adultery, Meenakshi Arora, Senior Counsel, argued by placing reliance on Blackstone where he had stated that, “a man killing the adulterer was manslaughter and not murder because it was the highest invasion of property”. It is correctly pointed out by her that adultery is a reactionary law and should be done to dust. However, the CJI has expressed his concern as to whether every choice of an individual comes with a corresponding right to exercise such choice.

Sunil Fernandes has asserted with due reasoning that Section 497 denies women autonomy, self-determination and respect, which a liberal, democratic and constitutional regime cannot countenance. He also exposed the provision for not having any deterrence value as opposed to other provisions of the Code. He also clarified that striking down of the law wouldn’t amount to its endorsement. On the context of the consent of the woman, he submitted that, “By allowing the husband and not the wife, to prosecute for adultery, a woman would have to face indignity of prosecution of her sexual partner ever where her consent is there. Her husband would be able to override her consent. The provision violates certain inviolable aspects of her privacy. Such prosecutions will entail elaborate salacious discussion of explicit details of a woman’s relationship thereby violating her right to life under Article 21 of the Constitution.”

Fernandes concluded by stating that the provision renders free will of married woman nugatory which is manifestly discriminatory on the grounds of sex. In the light of such legal submissions and the observations therein, what clearly should transpire as an outcome of the case is that a penal provision cannot rest on a popular morality or society’s perception about morality.

Anand Grover’s submissions were also focused towards the importance to be given to the consent of women. Although he couldn’t be present at the court hearing, and was represented by Fernandes instead, through his written submissions Grover emphasised that Section 497 reveals a blatantly sexual mindset in that it controls a woman and her sexuality and holds her solely responsible for preserving the sanctity of marriage, while making the man immune from it, thereby impairing the wife’s dignity. Arguing on behalf of Grover, Sunil Fernandes stated that, “the provision propagates sex stereotyping. The main partner of an adulterous woman is liable for prosecution because he has seduced the wife of another man. This perpetuates gender disparities and propagates stereotypes that a woman’s virtue is determined by her sexual conduct.”

Towards recognising ‘marital rape’

On the other side, to trace out the recent development concerning the importance given to the consent of the married woman in cases of marital rape, there have been positive remarks from the Bench and the changing trend of judicial orders show a sign of light at the end of the tunnel. Recently, J. Pardiwala of Gujarat High Court, while hearing on a matter concerning marital rape, has stated, “A law that does not give married and unmarried women equal protection creates conditions that leads to marital rape. It allows the men and women to believe that marital rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed.”

He further went on to observe in his Order that, “The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that marital rape is not a husband’s privilege, but rather a violent act and injustice that must be criminalised.”

The Indian judiciary on a prior occasion in the Suchita Srivastava case has held that, “It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.” The judgment was in the backdrop of a crucial consideration of the protection of woman’s right to privacy, dignity and bodily integrity. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse to participate in sexual activity or alternatively the insistence on the use of contraceptive methods. This choice cannot be taken away from women merely on the basis of their marital status. Women do not shed their rights to choose/consent and be free from rape simply by getting married.

These judgments and observations made by different Courts show the growing recognition of the importance of consent of a married woman. The same was not the case a couple of years ago. A Delhi based Special Fast-Track Court had avowed that sexual intercourse between a married couple, even if forcible, is not rape and no culpability can be fastened on the accused.

Senior Counsel Indira Jaising, who was then an Additional Solicitor General, in her keynote address speech to the Justice Verma Committee, solicited the criminalisation of marital rape in the country and said that, “Marital rape exemption in Section 375 is a poigant reminder of the lowly status given to women in our society, almost akin to chattel. Why else would a crime of rape by a man against his own wife not be an offence?” She further remarked that, if rape is a violation of human rights then it is equally a violation whether committed by her husband or stranger. It is, therefore, essential to condemn the eternal consent once the institution of marriage is solemnised and the existence of such an exemption in the law should be done away with.

The ‘India isn’t ready’& ‘misuse’ excuse

The Union Cabinet Minister for Women and Child Development, Maneka Gandhi takes the stand that it is not possible to criminalise marital rape in the country. She has stated that “India has its own unique problems. If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife”.

When a similar argument was advanced by the Standing Counsel of the Union before the Delhi High Court, Advocate Karuna Nundy vehemently opposed such rationale by contending that, “Indeed any law may be misused. For example, Section 420 IPC is often cited when contracts break down in order to pressurise a defaulting party, however, the laws on perjury and malicious prosecution are appropriate remedies rather than the decriminalisation of cheating.”

With both the adultery and the marital rape issues being now considered by the Court, it is important to acknowledge that the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are degraded to the status of a chattel. The questions involve impairment of the rights conferred under Article 21 of the Constitution and the same warrants stricter judicial intervention. Along with judicial awakenings, we require generation of awareness about the importance of consent of a woman.