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30 September, 2018 12:17:52 PM

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Will there be light?

On September 27, the Indian Supreme Court struck down the 150-year-old adultery law, saying it was unconstitutional and dented the individuality of women
Kumkum Chadha
Will there be light?

Before women could even finish rejoicing the first verdict of the apex court there came another: equally important and one that could change the way men, society and religion look at women. Simply put, this means that even while the society was dithering, the Courts have taken a revolutionary step and through two landmark judgments brought women at par with men and ushered in gender justice.

The first is about her rights in marriage and the second about their religious rights. The first pertain to her home and husband and the second to her entry into a temple. In both she was subservient to men and as the apex Court said while delivering one judgment she was treated as  “chattel" or "property" of their husbands. But first the low down.
On September 27, the Supreme Court  struck down the 150-year-old adultery law, saying it was unconstitutional and dented the individuality of women.
The five judge bench, comprising one-woman judge Indu Malhotra unanimously held that Section 497 of the Indian Penal Code, dealing with the offence of adultery, was unconstitutional and struck down the penal provision.
"The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by," the lady judge said.

Terming a legislation “perpetuating stereotypes in relationships and institutionalises discrimination” a clear violation of the fundamental rights, the Courts held, should not be continued.

Section 497 of the 158-year-old IPC says: "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."

Adultery was punishable by a maximum five years in jail or fine or both.

"Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down” the judges observed.  

In a separate but concurring judgement, Justice Malhotra said that adultery was treated as an injury to the husband, since it was considered to be a "theft of his property", for which he could prosecute the offender adding that  the provision which does not allow the wife of the adulterous male prosecute her husband for marital infidelity was discriminatory against women.

 Terming the section  “obsolete and archaic," the Court observed that equality is the need of the hour and that its time to make it clear that the husband should not be considered the master of his wife. Subordination of any sex over the other is clearly unconstitutional, the CJI reiterated.

Adding that women cannot be treated as “cattle”, the Court observed that "adultery can be a ground for divorce…But why a criminal offence?"

“Adultery”, the Court said, can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence.”

But this was only one part of the story. The other, equally significant was the Court’s yet another move to put an end to a centuries-old tradition when the Supreme Court ordered that the temple doors be thrown open to women, irrespective of age while ruling that they could  enter Kerala’s Sabarimala temple.

A five-judge Constitution bench, headed by Chief Justice of India Dipak Misra, said that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorised the restriction, violated the right of Hindu women to practice religion. It also said that patriarchy in religion cannot be allowed to trump the right to pray.

The ban had been challenged and the Kerala High Court had ruled that only the “tantri (priest)” was empowered to decide on traditions. The petitioners had argued in court that the tradition is discriminatory in nature and stigmatised women, and that women should be allowed to pray at the place of their choice.

Four judges on the bench ruled in favour of lifting the ban on women entering Sabarimala temple while Justice Indu Malhotra gave a dissenting judgement. Chief Justice of India  Dipak Misra said devotion cannot be subjected to discrimination. "Patriarchal rules have to change. Patriarchy in religion cannot be allowed to trump right to pray and practise religion", he said. The judges also said: "To exclude women of the age group 10-50 from the temple is to deny dignity to women. To treat women as children of lesser god is to blink at the Constitution" adding  that not allowing the woman to enter because they are of procreating age is "derogatory" to them.

 "Religion cannot be used as cover to deny rights of worship to women and it is also against human dignity." "Prohibition on women is due to non-religious reasons and it is a grim shadow of discrimination going on for centuries, " they added.

However, in a dissenting verdict, Justice Indu Malhotra held  that it was not upto the court to decide which religious practices should be struck down, except in issues of social evil like 'Sati'. She was  of the view that the petition does not deserve to be entertained, adding that the verdict will have far-reaching implications for other places of worships.

But not everyone is cheering. Even while the apex court decriminalising adultery is being seen as a historic moment there are enough  cynics who feel that it would destroy the institution of marriage. If there are some who have said that the judgement gives a “license to the people of this country to be in marriages but at the same time have illegitimate relationships with others,” some wondered  if the verdict is a gateway to polygamy.

Interestingly, the Centre, in its affidavit, has contended that adultery should remain an offence, saying Section 497 was enacted so as to safeguard the sanctity of marriage. “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” the Centre had said.

As against this, the entry issue in the Sabarimala temple while sending a cheer amongst women activists raises doubts on its practicality and whether despite a favourable law women will be hounded by the custodians who are a law unto themselves.

Sabarimala temple attracts a large number of pilgrims every year and it is believed that they have to fast for 41 days to cleanse their minds before going to Sabarimala.

There are restrictions on the entry of women in the age group of 10 to 50 years in the shrine because the presiding deity Lord Ayyappa is considered to be a ‘naishtika brahmachari’ (perennial celibate). The temple’s management had told SC that women of menstruating age can’t be allowed on account of “purity”.

Sabarimala temple has a rule which disallows post-puberty, pre-menopause women from entering.

The Court’s verdict, has not gone down well  with several sections stating that an age old custom and ritual cannot be suddenly broken by civil law and has the makings of creating communal disharmony. The women, some felt, would, instead of getting relief, become victims if they begin to violate the age old belief of the people and the traditions of the temple.

Therefore even while the Courts have been pro-women and paved the way for gender equality and justice, the key question is will women tread the path? Will there finally be light?

The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: (kumkum91@gmail.com)  

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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