The Supreme Court is hearing the challenge to Section 497 of the Indian Penal Code, a provision that criminalises adultery, for the second day..The case is being heard by a Constitution Bench presided by Chief Justice Dipak Misra, along with Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra..For a summary of yesterday’s hearing, read here..Live updates follow:.Submissions by Kaleeswaram Raj.Bench assembles, hearing commences in Supreme Court; Advocate Kaleeswaram Raj making submissions for the petitionerNot challenging adultery as a ground for divorce, Kaleeswaram RajOn whether the provision protects sanctity of marriage: “If a married man has sex with unmarried woman it is not adultery but does it still not affect sanctity of marriage?”, DY Chandrachud J remarksThe respondents might contend that doctrine of severability should be applied but can it be applied to make the offence more severe, asks DY Chandrachud JIt (Section 497) cannot be read down or made gender neutral, it has to be struck down, submits Kaleeswaram RajMacaulay himself did not want to include this provision in IPC, Justice Rohinton NarimanIf there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel, Justice Indu MalhotraGoing by classical test of Article 14, there is no intelligible differentia for achieving the object which is protecting sanctity of marriage, Rohinton Nariman J. remarksI am not saying that the provision should be made gender neutral; that is not my argument. I am only taking that as a ground for striking down Section 497, KaleeswaramOn arbitrariness test, the fact that husband’s connivance will not make it a crime is manifestly arbitrary, Rohinton Nariman JKaleeswaram Raj on CrPC provision which allows some other person in whose “care” the woman is, to file complaint on behalf of the husband in his absenceThis provision enabling delegation of husband’s right was brought about by 1973 amendment of CrPC; Prior to that such delegation was not there, Kaleeswaram RajSection 497 is indirecly discriminatory towards women under Articles 14, 15, Kaleeswaram RajThe provision gives an impression that it is protective of women but it is not, Kaleeswaram RajIt conceives women as a chattel incapable of decision making. It is a kind of paternal protectivism, Kaleeswaram RajFurther, a woman cannot file a complaint against her husband if he has sex with unmarried woman, though her grievance is the same as that of man, Kaleeswaram RajIt directly discriminates against women in that it impinges sexual freedom of married women but does not do so with respect to married men, Kaleeswaram RajOffence of bigamy under Section 494 IPC gender neutral and women can also be liable. That distinction between 494 and 497 itself makes 497 unconstitutional, remarks DY Chandrachud JJust like it is religiously neutral, State has to be culturally neutral, Kaleeswaram RajBench rises for lunch, hearing to resume at 2 pmBench re-assembles, hearing resumesKaleeswaram Raj concludes arguments, Bench thanks him for his assistance.Submissions by Senior Advocate Meenakshi Arora.Meenakshi Arora tracing the history of rape provisions in IPC and the jurisprudence behind it – of women being chattels of menThe jurispridence behind adultery was no different. The object was not to protect bodily integrity of woman but to protect man’s control over wife’s sexuality, Meenakshi AroraThe fundamental structure of Hindu society was to preserve land, woman and rituality, Meenakshi AroraMeenakshi Arora tracing the history of adultery including views of Macaulay on the sameIf adultery has its basis in woman being a property of man, then Section 497 has to go for that reason alone, Meenakshi AroraThe offence of adultery is predicated on the absence of consent or connivance of the husband, Meenakshi AroraDe-criminalizing adultery is not licensing adultery, DY Chandrachud J. Yes. Civil liability persists, it will still be a ground for divorce, Meenakshi AroraJustice Indu Malhotra says India’s first woman judge, Justice Anna Chandy had a dissenting view in 42nd Law Commission report to delete Section 497Are you going into the issue of adultery ceasing to be a ground for divorce, CJI Dipak Misra. I am not, I cant even say that. I am not even going into its applicabilty in civil law sphere, Meenakshi AroraIf sexual freedom is a fundamental right then why should adultery remain in civil law, asks CJI Dipak Misra. Meenakshi Arora responds by taking recourse to ‘reasonable restrictions’I am not venutring into adultery as civil wrong, Meenakshi AroraMarriages are intimate family affairs and cannot be preserved under a threat of criminal prosecution against one of the parties, Meenakshi AroraState should not intervene in an area wherein no public interest lies; Adultery laws in criminal sphere are being abolished globally, Meenakshi AroraMacaulay considered adultery as a tool for oppression of women, Meenakshi AroraMeenakshi Arora concludes her arguments.Submissions by Sunil Fernandes.Union of India has submitted that Section 497 has the object of preserving sanctity of marriage. But it does not penalise a husband for having sex with an unmarried woman or widow though that also hits the sanctity of marriage, Sunil FernandesYour Lordships should not strike down Section 497 solely on ground of A.14 but also hold it as violative of Article 21 because otherwise Centre might bring in a gender neutral law criminalising adultery to get over Your Lordships judgment, Sunil FernandesJust because Your Lordships are striking it down does not mean Your Lordships are endorsing it, Sunil FernandesDoes a woman or man lose their degree of sexual autonomy after marriage. According to me no, says Justice DY Chandrachud J.The right to say “no” should be there after marriage also, remarks Justice DY ChandrachudBench rises for the day. Hearing to resume next week.Read Meenakshi Arora’s written submissions:.Read written submissions of Sunil Fernandes
The Supreme Court is hearing the challenge to Section 497 of the Indian Penal Code, a provision that criminalises adultery, for the second day..The case is being heard by a Constitution Bench presided by Chief Justice Dipak Misra, along with Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra..For a summary of yesterday’s hearing, read here..Live updates follow:.Submissions by Kaleeswaram Raj.Bench assembles, hearing commences in Supreme Court; Advocate Kaleeswaram Raj making submissions for the petitionerNot challenging adultery as a ground for divorce, Kaleeswaram RajOn whether the provision protects sanctity of marriage: “If a married man has sex with unmarried woman it is not adultery but does it still not affect sanctity of marriage?”, DY Chandrachud J remarksThe respondents might contend that doctrine of severability should be applied but can it be applied to make the offence more severe, asks DY Chandrachud JIt (Section 497) cannot be read down or made gender neutral, it has to be struck down, submits Kaleeswaram RajMacaulay himself did not want to include this provision in IPC, Justice Rohinton NarimanIf there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel, Justice Indu MalhotraGoing by classical test of Article 14, there is no intelligible differentia for achieving the object which is protecting sanctity of marriage, Rohinton Nariman J. remarksI am not saying that the provision should be made gender neutral; that is not my argument. I am only taking that as a ground for striking down Section 497, KaleeswaramOn arbitrariness test, the fact that husband’s connivance will not make it a crime is manifestly arbitrary, Rohinton Nariman JKaleeswaram Raj on CrPC provision which allows some other person in whose “care” the woman is, to file complaint on behalf of the husband in his absenceThis provision enabling delegation of husband’s right was brought about by 1973 amendment of CrPC; Prior to that such delegation was not there, Kaleeswaram RajSection 497 is indirecly discriminatory towards women under Articles 14, 15, Kaleeswaram RajThe provision gives an impression that it is protective of women but it is not, Kaleeswaram RajIt conceives women as a chattel incapable of decision making. It is a kind of paternal protectivism, Kaleeswaram RajFurther, a woman cannot file a complaint against her husband if he has sex with unmarried woman, though her grievance is the same as that of man, Kaleeswaram RajIt directly discriminates against women in that it impinges sexual freedom of married women but does not do so with respect to married men, Kaleeswaram RajOffence of bigamy under Section 494 IPC gender neutral and women can also be liable. That distinction between 494 and 497 itself makes 497 unconstitutional, remarks DY Chandrachud JJust like it is religiously neutral, State has to be culturally neutral, Kaleeswaram RajBench rises for lunch, hearing to resume at 2 pmBench re-assembles, hearing resumesKaleeswaram Raj concludes arguments, Bench thanks him for his assistance.Submissions by Senior Advocate Meenakshi Arora.Meenakshi Arora tracing the history of rape provisions in IPC and the jurisprudence behind it – of women being chattels of menThe jurispridence behind adultery was no different. The object was not to protect bodily integrity of woman but to protect man’s control over wife’s sexuality, Meenakshi AroraThe fundamental structure of Hindu society was to preserve land, woman and rituality, Meenakshi AroraMeenakshi Arora tracing the history of adultery including views of Macaulay on the sameIf adultery has its basis in woman being a property of man, then Section 497 has to go for that reason alone, Meenakshi AroraThe offence of adultery is predicated on the absence of consent or connivance of the husband, Meenakshi AroraDe-criminalizing adultery is not licensing adultery, DY Chandrachud J. Yes. Civil liability persists, it will still be a ground for divorce, Meenakshi AroraJustice Indu Malhotra says India’s first woman judge, Justice Anna Chandy had a dissenting view in 42nd Law Commission report to delete Section 497Are you going into the issue of adultery ceasing to be a ground for divorce, CJI Dipak Misra. I am not, I cant even say that. I am not even going into its applicabilty in civil law sphere, Meenakshi AroraIf sexual freedom is a fundamental right then why should adultery remain in civil law, asks CJI Dipak Misra. Meenakshi Arora responds by taking recourse to ‘reasonable restrictions’I am not venutring into adultery as civil wrong, Meenakshi AroraMarriages are intimate family affairs and cannot be preserved under a threat of criminal prosecution against one of the parties, Meenakshi AroraState should not intervene in an area wherein no public interest lies; Adultery laws in criminal sphere are being abolished globally, Meenakshi AroraMacaulay considered adultery as a tool for oppression of women, Meenakshi AroraMeenakshi Arora concludes her arguments.Submissions by Sunil Fernandes.Union of India has submitted that Section 497 has the object of preserving sanctity of marriage. But it does not penalise a husband for having sex with an unmarried woman or widow though that also hits the sanctity of marriage, Sunil FernandesYour Lordships should not strike down Section 497 solely on ground of A.14 but also hold it as violative of Article 21 because otherwise Centre might bring in a gender neutral law criminalising adultery to get over Your Lordships judgment, Sunil FernandesJust because Your Lordships are striking it down does not mean Your Lordships are endorsing it, Sunil FernandesDoes a woman or man lose their degree of sexual autonomy after marriage. According to me no, says Justice DY Chandrachud J.The right to say “no” should be there after marriage also, remarks Justice DY ChandrachudBench rises for the day. Hearing to resume next week.Read Meenakshi Arora’s written submissions:.Read written submissions of Sunil Fernandes
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