The law, which is
158-year-old, states that any man who has sex with a married woman,
without the permission of her husband, was guilty of the criminal act of
adultery. The law dictated that the woman could not be punished as an
abettor. Instead, the man was considered to be a seducer. It also did not
allow women to file a complaint against an adulterous husband.
A
man accused of adultery could be sent to a prison for a maximum of five years,
made to pay a fine, or both. It is not clear how many men have been
prosecuted under the law since its inception as there is no data available.
But,
last August, Joseph Shine, a 41-year-old Indian businessman living in Italy,
challenged the law saying it was arbitrary and discriminated against men and
women. He petitioned the Supreme Court to strike down the law.
His
petition reads:
Married
women are not a special case for the purpose of prosecution for adultery. They
are not in any way situated differently than men.
Mr
Shine added that the law also "indirectly discriminates against women
by holding an erroneous presumption that women are the property of men".
However,
India's ruling BJP government had opposed the petition, insisting that adultery
should remain a criminal offence.
A
government counsel told the court:
Diluting
adultery laws will impact the sanctity of marriages. Making adultery legal will
hurt marriage bonds. Indian ethos gives paramount importance to the institution
and sanctity of marriage.
The colonial-era
law was struck down by the Supreme Court, making it the
second colonial-era law to be struck down this month, the first being the
law that criminalized gay sex.
While
reading out the judgement on adultery, Chief Justice Dipak Misra said that
while it could be grounds for civil issues like divorce, "it cannot be a
criminal offence".
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