NEW DELHI – India’s supreme court has ruled that adultery is no longer a crime, tearing apart a 158-year-old law which treated women as male property.
Before the apex court’s ruling, any man who had sex with a married woman, without the permission of her husband, had committed a cognizable offence, however, the latest directives will ease the burden off the individuals involved in adultery.
The decision came after a petitioner, Joseph Shine, a 41-year-old Indian businessman living in Italy, challenged the law, saying it was arbitrary and discriminated against men and women.
“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 stated.
In his 45-page petition, Mr Shine quoted 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.
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The law, Mr Shine said, also ‘indirectly discriminates against women by holding an erroneous presumption that women are the property of men’.
While announcing the judgement on adultery ( sexual intercourse between a married person and a person who is not their spouse), Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, ‘it cannot be a criminal offence’.
The five-judge Constitution bench comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra and had reserved its verdict in the case in August.
In its ruling, the bench dubbed the law archaic, saying it violates Articles 14 and 21 of the Indian Constitution; in India, adultery is a crime and the punishment for it can be imprisonment for five years, or fine, or both.
Top judge Misra and justice Khanwilkar said mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if the evidence is produced, it could be treated as an abetment to suicide.
Adultery might not be the cause of unhappy marriage, it could be the result of an unhappy marriage, the CJI remarked.
This is the second colonial-era law struck down by India’s Supreme Court this month. Recently, it also overturned a 157-year-old law which effectively criminalised gay sex in India.
