India’s supreme court strikes down a colonial-era adultery law

Bound no more.
Bound no more.
Image: Reuters/Amit Dave
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Extramarital sex is not a criminal offence in India anymore.

The country’s supreme court today (Sept. 27) struck down a colonial-era law that prescribed a maximum imprisonment of five years to men for adultery. However, the offence still remains a valid ground for divorce.

A five-judge bench of the court ruled that section 497 of the Indian Penal Code violates women’s right to equality and treats them like the property of their husbands. “It’s time to say that (a) husband is not the master of (his) wife,” chief justice of India, Dipak Misra, read out from the judgment.

Unlike the country’s sexual assault laws, which hinge on the consent of the woman, the 158-year-old adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act.

A wife, on the other hand, could prosecute neither her husband nor those with whom he had engaged in extramarital affairs.

The Narendra Modi government had supported the colonial-era law on the grounds that it preserved the sanctity of marriage and served a public good.

“Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy (divorce law) available to the other. Where is the question of ‘public good’ in a broken marriage?” Misra had asked during the hearings in August.

The Modi government was open to making the law gender-neutral by allowing for the prosecution of a woman who has sex with a married man. However, the court has consistently refused to allow for prosecution of women. 

In 1985, the supreme court said, “It is commonly accepted that it is the man who is the seducer and not the woman,” and that making the law gender-neutral would allow for “a crusade by a woman against a woman.”