By Tahir Mahmood
October
5, 2018
Supreme
Court holds adultery, marriage to be civil matters. Shouldn’t this hold for
triple talaq?
The
apex court exercised its extraordinary power under Article 142 of the
Constitution in allowing ArcelorMittal and NuMetal to make fresh bid for Essar
Steel.
The
new judicial verdict is being misunderstood in ill-informed circles as a
licence for licentious behaviour. (File)
“It is
better, from the point of view of the interests of the society, that at least a
limited class of adulterous relationship is punishable. Stability of marriages
is not an ideal to be scorned” said Justice Chandrachud senior, a third of a
century ago (Sowmithri, 1985). He was deciding a writ petition challenging the
constitutional validity of section 497 of the IPC, relating to adultery.
“This
court has recognised sexual privacy as a natural right protected by the
Constitution. To shackle the sexual freedom of a woman and allow
criminalisation of consensual relationships is a denial of this right,” now
says Justice Chandrachud Jr, about the same legal provision (Shine, 2018). This
sea change in judicial approach provision reflects the proverbial generation
gap for which the last CJI, Dipak Misra, has an apology: “The progression in
law and the perceptual shift compels the present to have a penetrating look to
the past.”
The
new judicial verdict is being misunderstood in ill-informed circles as a
licence for licentious behaviour. Far from it. Section 497, which it has struck
off, was indeed obnoxious. It spoke of a matrimonial offence, not by a married
woman against her husband but by another man against him.
Addressing
men, it said “if you have sex with a woman married to someone else with her
free consent (without that it will be a different offence called rape), it will
be adultery on your part for which you will be punished if her husband
complains of it, of course you are free to do that with her husband’s consent
or connivance,” or of her husband-appointed custodian as provided in section
198 (2) of Criminal Procedure Code.
In
other words, she is her husband’s chattel. For not making the woman liable to
punishment in any such case, a justification had been given by the framers of
the code over one-and-a-half centuries ago — that Indian marriages were
potentially polygamous (which was then true of all personal laws) and men could
have more than one wife so let women, who are not allowed this luxury, have the
freedom to enjoy sex outside wedlock. Strange logic, but Britons have always
preferred adultery to plural marriages.
The
Shine judgment has not “decriminalised” extramarital sex in the sense of making
it a lawful activity — the court’s stand simply is that men’s grievance about
their wives’ sexual infidelity falls in the domain of private law and should,
therefore, be dealt with under matrimonial laws. Women’s grievance about their
husband’s sexual infidelity is dealt with only by marriage laws, there is no
space for it in criminal law, so why retain gender discrimination in this
matter; that can be seen only as ultra vires the constitution?
The
first Indian family law to treat adultery as a ground for dissolution of
marriage was the Indian Divorce Act 1869 meant for Christians. The Dissolution
of Muslim Marriages Act 1939, enabled women to seek divorce if the husband
“associates with women of evil repute or leads an infamous life, or attempts to
force her to lead an immoral life”. Its framers were concerned about
prostitution and not simply adultery.
During
1954-55, the Special Marriage Act and Hindu Marriage Act made “living in
adultery” by either spouse a ground for divorce or judicial separation.
Twenty-one years later, this ground was changed to “voluntary sexual
intercourse” with anyone other than the spouse. The option of awarding judicial
separation depending on the chances of reconciliation was, however, retained
for the courts.
The
SC’s new verdict that matrimonial issues fall in the realm of civil law and
need not be resolved by criminal law is quite rational. But should not the
ideology be uniformly applicable to such issues for all sections of citizens?
By this yardstick, should not the Triple Divorce Ordinance now under challenge
in the court fall flat? Is the country’s ever-angry law minister listening?
The writer is former chair, National Minorities
Commission and member, Law Commission of India
Source:
indianexpress.com/article/opinion/columns/supreme-court-adultery-verdict-triple-talaq-5387107/
URL: http://newageislam.com/current-affairs/tahir-mahmood/no-place-for-the-ipc/d/116571