NEW DELHI, DHNS: The sexuality of a woman is part of her inviolable core; neither the state nor the institution of marriage can disparage it, Justice D Y Chandrachud said on Thursday.
In his 77-page judgement, declaring Section 497 as unconstitutional, he said the provision is destructive of and deprives a woman of her agency, autonomy and dignity.
It chains the woman to antediluvian notions of sexuality. In criminalising adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse, he said.
The provision is meant for preservation of the sexual exclusivity of a married woman, he said, noting its patriarchal underpinnings.
Holding the section as a paradigmatic example of benevolent patriarchy, he said "the woman is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink".
He said the right to sexual autonomy and privacy has been granted the stature of a constitutional right.
Section 497 was premised upon sexual stereotypes that view women as passive and devoid of sexual agency since it treated them as merely "victims" of adultery, he said.
Justice Chandrachud said the operation of Section 497 was confined to the sexual relations of a woman outside her marriage and that it was founded on the notion that a woman, by entering into a marriage, loses her voice, autonomy and agency.
"A woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognised as being so today," he said. The provision, he said, was based on a notion of marital subordination and subjugation.
"Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute," he said, adding that sharing of physical intimacies is a reflection of choice.
"Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another. Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence," he said.
Justice Chandrachud further noted the underlying Section 497 was a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible.