Adultery No Longer A Crime In India, top Court Rules

India’s highest court has ruled, on adultery declaring a 158-year-old colonial-era law that punished the offense with jail time unconstitutional and discriminatory against women.

The judges declared extramarital sex can no longer serve as grounds for arrest, although it remains a cause for divorce.

Before the judgment, any man who had sex with a married woman, without the permission of her husband, had committed a crime carrying a five-year prison term in the conservative country.

In December 2017, Joseph Shine filed a petition challenging the section. A three-judge bench, headed by Chief Justice of India Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.

The law, 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.

The bench argued that Section 377 had become “a weapon for harassment” of homosexuals and “history owes an apology to the members of this community and their families”.

On adultery, government lawyers argued it should remain a crime as it threatens the institution of marriage, and caused harm to children and families.

But in its ruling, the court said extramarital affairs — while still, a valid ground for divorce — were a private matter between adults.

Prashant Bhushan, a lawyer in the Supreme Court, said watershed decisions on gay sex and adultery had shown the judges’ “adherence to liberal values and the constitution”.

“Another fine judgment by the SC,” he Tweeted after Thursday’s ruling.

In 1954, the court upheld adultery as a crime arguing “it is commonly accepted that it is the man who is the seducer and not the woman”.

But in their ruling on Thursday, the judges said this narrative no longer applied, noting also that Britain did away with its own laws penalizing adultery long ago.

“Man is the seducer and women being the victim no longer exits. Equality is the governing principle of a system. Husband is not the master of the wife,” the verdict added.



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