India’s top court has ruled that adultery is no longer a criminal offence.
The law, which is 158-year-old, states that any man who has sex with a married woman, without the permission of her husband, was guilty of the criminal act of adultery. The law dictated that the woman could not be punished as an abettor. Instead, the man was considered to be a seducer. It also did not allow women to file a complaint against an adulterous husband.
A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both. It is not clear how many men have been prosecuted under the law since its inception as there is no data available.
But, last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, challenged the law saying it was arbitrary and discriminated against men and women. He petitioned the Supreme Court to strike down the law.
His petition reads:
Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men.
Mr Shine added that the law also “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.
However, India’s ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.
A government counsel told the court:
Diluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds. Indian ethos gives paramount importance to the institution and sanctity of marriage.
The colonial-era law was struck down by the Supreme Court, making it the second colonial-era law to be struck down this month, the first being the law that criminalized gay sex.
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”.
