Marriage does not shackle a woman’s sexual freedom & choice – Justice Chandrachud

The sexual choices that a person makes is part of that person’s expression, and the constitution does not allow anyone to “shackle the sexual freedom” of another just because he or she entered into a marriage, Justice Dhananjay Chandrachud said today in his 77-judgment in the ‘Section 497’ case.

The order also linked a person’s sexuality to his need for self expression — something that is protected by the constitution.

Chandrachud’s 77-page order attacks the notion that women, or men for that matter, surrender their right to make their own sexual choices when they enter into a marriage. Instead, he said, they retain the right, and adultery is usually the result, and not the cause, of bad marriages.

“The sexuality of a woman is part of her inviolable core. Neither the state nor the institution of marriage can disparage it,” the 77-page order said, striking down the legal provision that gave husbands the right to have their wive’s lover thrown in jail for up to five years.

Justice Chandrachud also pointed out that each person has a right to sexual privacy, even after marriage.

“This Court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right.”

He said that by reducing the woman to the status of a victim and ignoring her needs, the adultery law disregards something which is basic to human identity and violates the fundamental rights to equality and liberty, and the right to pursue a meaningful life within the fold of Articles 14 and 21.

“Sexuality is a definitive expression of identity. Autonomy over one’s sexuality has been central to human urges down through the ages. It has a constitutional foundation as intrinsic to autonomy.”

The order also linked sexual expression to the broader right of self expression.

“Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfillment.

“Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination,” the order reads. The order goes on to link the right to make sexual choices to the freedom of expression guaranteed by the constitution — even if the person is married.

“Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational attributes, it links up with the human desire to be intimate with a person of one’s choice.

“Sharing of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones, the individual must have the ability to make essential decisions. Sexuality cannot be dis-associated from the human personality.

“For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices.

“Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another.

“Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse…

“The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage.

“Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14,” he noted in his order in the petition filed by Joseph Shine.

He also said that it was not enough for law to be in sync with popular morality, but that they also needed to be in sync with the founding principles of the constitution.

“The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an ‘unpopular’ choice…

“Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster,” he said, striking down the provision.


The order also sought to refute notion that, with marriage, a woman or a man gives up the right to ‘sexual autonomy’ and the right to make his or her own choices.

“Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage.

“That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order.

“Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions.

“Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values,” the order said.


The judge also dismissed the argument that making adultery a criminal offence will save marriages. Instead, he said, marriages need commitment from both partners to survive.

“Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship.

“But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be compelled for reasons personal to them to continue with the veneer of a marriage which has ended for all intents and purposes.

“The interminably long delay of the law in the resolution of matrimonial conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law.

“Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing,” the order said.