Adultery in India was a criminal offense. Until now

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Indian Supreme Court (Photo: IANS)

NEW DELHI – India’s top court on Thursday struck down a 158-year law that punished people for having extramarital affairs, effectively decriminalizing adultery.

The verdict is latest of a string of progressive judgments from India’s top court. Judges also decriminalized homosexuality and curbed the usage of a government biometric database by private companies in September, acknowledging arguments from privacy activists.

“It’s time to say that husband is not the master of wife,” said Chief Justice Dipak Misra, delivering the verdict. “Legal sovereignty of one sex over the other sex is wrong.”

Married women in India face huge pressure to limit contact with men other than their husbands. They are often restricted by family members to dress conservatively or remain inside the home in India’s deeply conservative society.

Until Thursday, Section 497 of the Indian Penal Code gave a maximum sentence of five years to anyone who had sex with a married woman, “without the consent or connivance” of her husband. The married woman was exempt from punishment, but her partner was not. The partners of adulterous married men, meanwhile, did not face equal consequences under the law.

The law was used as a blackmail tool to keep women in unhappy marriages or prevent them from claiming alimony in divorce proceedings.

“It had a chilling effect on a lot of divorce cases,” said Indira Jaising, a Supreme Court lawyer. “What used to happen is husbands hired professional detectives to check on wives and then threaten or begin prosecution.”

Justice Indu Malhotra, the only woman on the five-judge bench, which delivered the unanimous verdict, pointed out the law’s “absurdity,” asking “is the wife of the consenting husband being treated as chattel? This amounts to gender bias.”

The court’s ruling was welcomed by women’s rights activists and lawyers who argued that the law treated women as victims and denied them agency.

“It was an outdated law which should have been removed long back,” said Rekha Sharma, chairwoman of the National Commission for Women, speaking about the law to Asian News International. “Although the British had done away with it long back, we were still stuck with it.”

Adultery will remains grounds for divorce, and adulterers can be criminally charged with the abatement of suicide, in cases where extramarital affairs lead to suicide, judges said.

The string of cases being decided by the court comes as Misra, the chief justice, is preparing to retire. He has presided over a bench that made privacy a fundamental right, and another that struck down a law allowing the Muslim practice of “instant” divorce last year, widely seen as improving the rights of Muslim women. The judge also faced a rare public “revolt” from four top judges who disagreed with the way he assigned judges’ cases.

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