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India\u2019s top court has ruled adultery is no longer a criminal offence.<\/p>\n
The 158-year-old colonial-era law said any man who had sex with a married woman, without the permission of her husband, was guilty of the criminal act of adultery.<\/p>\n
It is not clear how many men have been prosecuted under the law since its inception \u2013 there is no data available.<\/p>\n
A petitioner had challenged the law saying it was arbitrary and discriminated against men and women.<\/p>\n
This is the second colonial-era law struck down by the Supreme Court this month \u2013 it also overturned a 157-year-old law which effectively criminalised gay sex in India.<\/p>\n
While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, \u201cit cannot be a criminal offence\u201d.<\/p>\n
Who challenged the law?
\nLast August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law.<\/p>\n
\u201cMarried women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,\u201d his petition said.<\/p>\n
The law, Mr Shine said, also \u201cindirectly discriminates against women by holding an erroneous presumption that women are the property of men\u201d.<\/p>\n
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 rights of women.<\/p>\n
However, India\u2019s ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.<\/p>\n
\u201cDiluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,\u201d a government counsel told the court, adding that \u201cIndian ethos gives paramount importance to the institution and sanctity of marriage\u201d.<\/p>\n
What did the adultery law say?
\nThe law dictated that the woman could not be punished as an abettor. Instead, the man was considered to be a seducer.<\/p>\n
It also did not allow women to file a complaint against an adulterous husband.<\/p>\n
A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both.<\/p>\n
And although there is no information on actual convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was \u201coften misused\u201d by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance.<\/p>\n
\u201cMen would often file criminal complaints against suspected or imagined men who they would allege were having affairs with their wives. These charges could never be proved, but ended up smearing the reputations of their estranged or divorced partners,\u201d he told the BBC.<\/p>\n
Interestingly, Indian folklore and epics are full of stories about extra-marital love. Most love poems in Sanskrit, according to scholar J Moussaief Masson, are \u201cabout illicit love\u201d.<\/p>\n
But Manusmriti, widely regarded to be the most important and authoritative book on Hindu law and dating back to at least 1,000 years before Christ was born, says: \u201cIf men persist in seeking intimate contact with other men\u2019s wives, the king should brand them with punishments that inspire terror and banish them\u201d.<\/p>\n
What did the judges say?
\nAll five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional.<\/p>\n
\u201cAncient notions of man being perpetrator and woman being victim no longer holds good,\u201d Judge Rohinton Nariman said.<\/p>\n
Justice DY Chandrachud said the law \u201cperpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes\u201d.<\/p>\n
He said the law sought to \u201ccontrol sexuality of woman (and) hits the autonomy and dignity of woman\u201d.<\/p>\n
Critics have called the law \u201cstaggeringly sexist\u201d, \u201c\u2018crudely anti-woman’\u201d, and \u201c\u2018violative of the right to equality’\u201d.<\/p>\n
\u201cThe legal system should not regulate whom one sleeps with,\u201d wrote Rashmi Kalia, who teaches law.<\/p>\n
The main concern, according to the respected journal Economic and Political Weekly, is \u201cnot whether the expectations of fidelity in a marriage are right or wrong, or whether adultery denotes sexual freedom.\u201d<\/p>\n
\u201cIt 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,\u201d the journal wrote in a recent editorial.<\/p>\n
Where else is adultery a criminal offence?
\nAdultery is considered illegal in 21 American states, including New York, although surveys show that while most Americans disapprove of adultery, they don\u2019t think of it as a crime.<\/p>\n
\u201cThe criminal statutes remain in force for largely symbolic reasons, and there isn\u2019t enough enforcement risk for anyone to incur the political costs of repealing them,\u201d Deborah Rhode, a a professor of law at Stanford University and the author of Adultery: Infidelity and the Law told the BBC.<\/p>\n
Adultery is prohibited in Sharia or Islamic Law, so it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan Pakistan, Bangladesh and Somalia.<\/p>\n
Taiwan punishes adultery by up to a year in prison and it is also deemed a crime in Indonesia. In fact, Indonesia is drafting laws that prohibit all consensual sex outside the institution of marriage.<\/p>\n
In 2015, South Korea\u2019s Supreme Court struck down a similar law where a man could be sent to prison for two years or less for adultery. The court said the law violated self-determination and privacy.<\/p>\n
More than 60 countries around the world had done away with laws that made adultery a crime, according to Indian lawyer Kaleeswaram Raj.<\/p>\n
In UK, adultery is not a criminal offence and like many other countries, one of the main reasons given for divorce.<\/p>\n
Couples cannot use adultery as a ground for divorce if they lived together as a couple for six months after the infidelity was known about.<\/p>\n
Have there been previous challenges to the law?
\nIn 1954, the law was first challenged by a petitioner asking why women cannot be punished for the offence, and that such \u201cexemption was discriminatory\u201d.<\/p>\n
The Supreme Court rejected the plea.<\/p>\n
Since then, the top court has rejected similar pleas, including the constitutional validity of the law, at least twice \u2013 1985 and 1988.<\/p>\n
\u201cThe stability of marriage is not an ideal to be scorned,\u201d a judge said in 1985.<\/p>\n
A married woman had approached the court, demanding the right to file a complaint of adultery against her husband\u2019s unmarried lover.<\/p>\n
The court, rather patronisingly, described the plea as a \u201ccrusade by a woman against a woman\u201d.<\/p>\n
It said the law was about punishing the \u201coutsider\u201d who \u201cbreaks into the matrimonial home\u201d and \u201cviolates its sanctity\u201d.<\/p>\n
Two different panels on law reforms in 1971 and 2003 recommended that women should also be prosecuted for the offence.<\/p>\n
\u201cThe society abhors marital infidelity. Therefore there is no good reason for not meting out similar treatment to the wife who has sexual intercourse with a married man,\u201d the 2003 panel, led by a judge, said.<\/p>\n
In 2011, the top court, hearing another plea, said the law was facing criticism for \u201cshowing a strong gender bias, it makes the position of a married woman almost as a property of her husband\u201d.<\/p>\n
\u2013<\/p>\n
Source: BBC<\/p>\n","protected":false},"excerpt":{"rendered":"
India\u2019s top court has ruled adultery is no longer a criminal offence. The 158-year-old colonial-era law said any man who had sex with a married woman, without the permission of her husband, was guilty of the criminal act of adultery. It is not clear how many men have been prosecuted under the law since its […]<\/p>\n","protected":false},"author":2,"featured_media":12038,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"iawp_total_views":0,"footnotes":""},"categories":[42],"tags":[],"class_list":["post-12037","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-world"],"yoast_head":"\n