The Supreme Court is currently gripped with issues around sex and sexuality – the right to same-sex relationships, prohibition on the entry of menstruating-age women into the Sabarimala temple, female genital mutilation, criminality of adultery. All these issues concern women, although some affect men and people of the third gender as well. Fortunately, a woman judge will be on the bench when intimate details about female anatomy, sexuality and sexual desire are argued before the court.

The government’s response, as indeed the apex court’s, to these issues has been varied. In the case related to Section 377, which criminalises homosexuality, the Centre has left the decision to the “wisdom of the court”. In the matter of female genital mutilation, while one judge has commented that it falls within the ambit of the Protection of Children from Sexual Offences Act, the court has allowed a Bohra women’s association to file an intervener application, arguing that it is an essential religious practice of the community and, hence, protected under Articles 25 and 26 of the Indian Constitution which guarantee freedom of religion. Hearing a challenge to the ban on women’s entry into the Sabarimala shrine in Kerala, Chief Justice Dipak Misra remarked, “If a man can enter, then so can a woman.”

On adultery, it is still not clear which way the court might rule. Will it render Section 497 of the Indian Penal Code “gender neutral”, thereby allowing women accused of adultery to be prosecuted as well under the guise of equality – currently only the adulterer can be tried under this law, not the adulteress – or will it strike down this archaic provision? The petitioner, Joseph Shine, has argued that Section 497 discriminates against men. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” he has pleaded.

On January 5, one of the three judges hearing the matter went beyond what is pleaded in the petition to bring in the angle of women’s dignity. “The provision creates a dent in the individual identity of a woman when the emphasis is laid on the connivance or consent of the husband,” he said. “This is tantamount to the subordination of a woman, whereas the Constitution confers equal status to a woman.”

So, in the final verdict, will this observation translate into prosecuting women too under the adultery law to bring in gender parity? That would be absurd.

Section 497 states that “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. The wife cannot be prosecuted. Interestingly, only sexual intercourse with a married woman amounts to adultery; sexual intercourse by a married man with an unmarried woman, divorcee, widow, sex worker does not.

The Centre has defended this provision on the ground that it is essential to save the institution of marriage. “Adultery should remain an offence,” it said in an affidavit to the court. “Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds.”

Constraining progress

The judicial discourse around this issue has been problematic. In 1954, in Yusuf Aziz vs State of Bombay, the Supreme Court upheld Section 497 on the erroneous ground that it is designed to favour women and is thus protected under Article 15(3), which empowers the state to make special provisions for women and children. But such a paternalistic approach towards women is no less sexist. The court failed to take note of the basic premise of women’s subordination within the institution of marriage that is inherent in this section.

In 1985, the apex court again upheld the constitutional validity of this section in Sowmithri Vishnu vs Union of India, ruling that even though India’s social mores may have changed, it was for the legislature and not the judiciary to decide the law.

In 1988, in V Revathi vs Union of India, the constitutionality of the adultery law was upheld on the ground that it amounted to “reverse discrimination” favouring women. The court adopted an absurd logic that since the husband and wife cannot prosecute each other, the law places them on an equal footing.

The rationale that the adultery law must be retained to preserve the sanctity of marriage is deeply flawed. It merely protects male privilege within marriage. When adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman’s sexuality and bodily integrity is reinforced. It grants the husband the right to treat his wife as a passive sexual being, and her consent to the sexual act becomes immaterial. This poses a challenge to Article 21, which guarantees the right to life, and with dignity.

Though superficially pro-women, this provision hangs like a sword over a woman in a violent marriage. Any man who dares help her escape can be kept at bay merely by being threatened with criminal proceedings under Section 497. I have seen this happen in many cases.

India has made considerable progress in empowering women educationally, economically and politically. But our record on ensuring women’s health and survival remains dismal. Several studies have revealed that every third woman in India is a victim of domestic violence.

Judges and legal experts over the years have pointed out that if Section 497 is made gender neutral, it will no longer be in constitutional conflict with Article 14, which guarantees equality under law.

In 2003, the Justice VS Malimath committee recommended making the provision gender neutral, and reducing the punishment under it to two years in prison.

This is a short-sighted view of gender relationships within marriage. When marriage is constructed as a patriarchal institution, the woman does not have corresponding control over her husband’s sexuality. Granting the husband additional power to prosecute his wife for adultery is like adding salt to a festering wound. How will this help achieve gender parity?

When the Centre decided to implement this recommendation in 2007, the National Commission for Women objected strongly, pointing out the reality of women’s lives and advising that adultery be retained solely as a matrimonial offence entitling the parties to claim divorce.

We should take a cue from Justice Anna Chandy, India’s first woman High Court judge, who, as a member of the 42nd Law Commission in 1971, voted for scrapping the provision, saying “it is the right time to consider whether the offence of adultery, as envisaged in Section 497, is in tune with the present-day notions of a woman’s status within marriage”.

Nearly half a century later, it will be interesting to see whether the Supreme court follows Chandy’s logic and strikes down the archaic provision, or goes by the Malimath committee’s patriarchal view to retain it after rendering it gender neutral.

Flavia Agnes is a feminist legal scholar and a women’s rights lawyer.