If a woman has right to say 'no' then it has to be accepted that she also does not lose her "sexual autonomy" after marriage, an Indian Supreme Court judge today said.
Justice D Y Chandrachud, who was part of a five-judge Constitution bench headed by Chief Justice Dipak Misra examining the penal law on adultery, also said that if a person indulge in an adulterous relationship then this itself was an indicator of a "broken marriage".
A woman, living in an almost broken relationship, does not lose her sexual autonomy just because she was married, the judge said.
"When we accept that a woman has the right to say 'no' then we will have to accept that she has the right to sexual autonomy," Justice Chandrachud said.
However, the CJI said, "Suppose we say that sexual autonomy is the natural right then it will take away the adultery as the ground for seeking divorce."
The CJI also drew the distinction between adultery as a criminal offence and as a civil wrong which has been used as a ground for seeking divorce in matrimonial disputes.
"As far as criminalisation or decriminalisation of adultery as an offence is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by estranged couple in a court of law," the apex court said.
"Mental cruelty is a ground for grant of decree of divorce. The question is whether adultery will tantamount to mental cruelty or not," the CJI said, adding that rights like sexual autonomy, right to choice and right to human dignity are different from each other.
A married person cannot have sexual autonomy to have adulterous relationship, the Chief Justice said, adding that adultery is a consensual act, but a woman cannot say that she has a fundamental right to choose partner outside the marriage.
Justice Chandrachud also said that decriminalising adultery would not amount to licensing it as it will prevail as civil wrong which can be used as a ground for seeking divorce.
Moreover, sexual autonomy, like other rights, cannot be absolute and can be subjected to reasonable restrictions, he said.
Justice Chandrachud gave the example of women, working as domestic help in Maharashtra, and said while they work, their husbands sit idle and moreover, they have been beaten and forced to live in broken relationships.
He then said in any case, their marriages are almost broken and hence, it cannot be said that they do not have the sexual autonomy because of the fact that they are married.
The CJI, at the fag end of the hearing, said that if the offence of adultery is retained by making it as gender neutral by the government then it would add "another few lakh more litigations".