India’s top court has ruled that adultery is no longer a crime, striking down a 158-year-old colonial-era law which it said treated women as male property.
Previously any man who had sex with a married woman, without the permission of her husband, had committed a crime.
According to a report by BBC, a petitioner had challenged the law saying it was arbitrary and discriminated against men and women.
It is not clear how many men have been prosecuted under the law – there is no data available.
This is the second colonial-era law struck down by India’s Supreme Court this month – it also overturned a 157-year-old law which effectively criminalised gay sex in India.
While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, “it cannot be a criminal offence”.
Who challenged the law?
Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects.
“Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said.
The law, Mr Shine said, also “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.
In his 45-page petition, Mr Shine liberally quotes from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women.
However, India’s ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.
“Diluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” a government counsel told the court, adding that “Indian ethos gives paramount importance to the institution and sanctity of marriage”.
What did the judges say?
All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional.
“Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Misra said.
Judge Rohinton Nariman said that “ancient notions of man being perpetrator and woman being victim no longer hold good”.
Justice DY Chandrachud said the law “perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes”.
He said the law sought to “control sexuality of woman (and) hits the autonomy and dignity of woman”.
Critics have called the law “staggeringly sexist”, “‘crudely anti-woman'”, and “‘violative of the right to equality'”.
“The legal system should not regulate whom one sleeps with,” wrote Rashmi Kalia, who teaches law.
The main concern, according to the respected journal Economic and Political Weekly, is “not whether the expectations of fidelity in a marriage are right or wrong, or whether adultery denotes sexual freedom.”
“It is whether the state can and should monitor a relationship between adults that is too complex, sensitive and individual for it to be capable of doing in a just manner,” the journal wrote in a recent editorial.