Published: Fri, September 28, 2018
Worldwide | By Lisa Hogan

Indian Supreme Court Rules Adultery No Longer a Crime

Indian Supreme Court Rules Adultery No Longer a Crime

This British-era law was already thrown out by Britain long ago.

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. "It can be a ground for a civil offence, a ground for divorce", Chief Justice of India Dipak Misra said in his judgment.

Women could not file a complaint under the archaic law nor be held liable for adultery themselves, making it exclusively the realm of men.

Delhi Commission for Women chief Swati Maliwal said decriminalising adultery completely is just going to add to the pain of women in the country.

In January, the four most senior justices held a news conference against Misra, who as chief justice controls the court's roster and decides who will take which cases, listing a litany of problems that they said afflicted the court and risked undermining India's democracy.

A petitioner, an Indian businessman, had challenged the court to strike down the law, describing it as arbitrary and discriminatory against women. Women having affairs could not be prosecuted, but they also couldn't file a complaint against cheating husbands.

The highest court of the land was unequivocal in its observations. "Equality is the governing parameter", the court said.

Even in the present proceedings, the Centre had defended the provision using a deeply flawed argument that it was essential to save the institution of marriage. Under this law women were not "protected" as alleged by many, because women could not charge the adulterer husband, as women were pursed by their husband as property. Since adultery is prohibited in Sharia or Islamic law, it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia.

In a strong echo of this, Justice Indu Malhotra noted in her judgment that "any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 (equality) and 15 (prohibition of discrimination) of the Constitution, which form the pillars against the vice of arbitrariness and discrimination".

"...where is the "collective good" in Section 497 of IPC?" the court had asked. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other.

The court pointed out how women are being subordinated by the law. If adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman's sexuality and bodily integrity gets reinforced. However, the five-member bench of judges still held that adultery stands as grounds for divorce.

While the law allows the aggrieved husband of the married woman in an adulterous relationship to file a complaint, it does not extend the same right to an aggrieved woman if her husband is found to be in an adulterous relationship.

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