Adultery not a crime, rules Indian Supreme Court

Adultery is no longer a crime in India though "without a shadow of doubt" can be grounds for divorce, the Supreme Court said on Thursday, junking a 158-year law that punished a man for an affair but not the woman, treating her as her husband's property.

“The husband is not the master of the wife,” said a five-judge bench, unanimously sticking up for gender justice and calling out the Victorian adultery law -- Section 497 of the Indian Penal Code -- as arbitrary.

The law punished a man who has an affair with a woman "without the consent or connivance of" her husband, with five years in jail or fine or both, NDTV reports.

There was no punishment for the woman, who was seen as the victim.

"The wife can't be treated as chattel and it's time to say that husband is not the master of woman," said Chief Justice Dipak Misra. “There can't be any social licence which destroys a home.”

The judges noted that most countries had abolished laws against adultery. Making adultery a crime is retrograde and would mean "punishing unhappy people", said Justice Misra.

As he began reading out the verdict, Justice Misra remarked that the beauty of the constitution is, it includes "I, me and you" and "any law which dents individual dignity and equity of women in a civilised society invites the wrath of the constitution."

The top court, calling adultery a relic of the past, said Section 497 "denudes women from making choices".

During arguments, the centre had defended the law saying adultery must remain a crime so that the sanctity of marriage can be protected. The top court had then questioned how the law preserved the sanctity of marriage when the extramarital affair didn't invite punishment if the woman's husband stood by her.

The chief justice said on Thursday that adultery might not be the cause of an unhappy marriage; it could be the result of one.

"In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy," the judges felt.

The Supreme Court had upheld the legality of the crime in 1954, arguing that in adultery "it is commonly accepted that it is the man who is the seducer, and not the women".

Last year, in response to the petition challenging the law, the court had said it treats a woman as her husband's subordinate and time had come for society to realise that a woman is as equal to a man in every respect.

In Bangladesh, the Section 497 of the Penal Code criminalises adultery. “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punished as an abettor.”

WHO CHALLENGED THE LAW?

Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law, according to BBC.

He argued that it discriminated against men by only holding them liable for extramarital relationships, while treating women like objects.

"Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men," his petition said.

The law, Shine said, also "indirectly discriminates against women by holding an erroneous presumption that women are the property of men".

In his 45-page petition, 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 the rights of women.

Previous pleas were dismissed by the court in the interests of "stability of marriages"

However, India's ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.

"Diluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds," a government counsel told the court, adding that "Indian ethos gives paramount importance to the institution and sanctity of marriage".

WHAT DID THE ADULTERY LAW SAY?

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, said the BBC.

A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both.

And although there is no information on actual convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was "often misused" by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance.

"Men 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," he told the BBC.

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 "about illicit love".

But Manusmriti, an ancient Hindu text, says: "If men persist in seeking intimate contact with other men's wives, the king should brand them with punishments that inspire terror and banish them".

WHERE ELSE IS ADULTERY A CRIMINAL OFFENCE?

Adultery is considered illegal in 21 American states, including New York, although surveys show that while most Americans disapprove of adultery, they don't think of it as a crime.

"The criminal statutes remain in force for largely symbolic reasons, and there isn't enough enforcement risk for anyone to incur the political costs of repealing them," Deborah Rhode, a professor of law at Stanford University and the author of Adultery: Infidelity and the Law, told the BBC.

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.

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.

In 2015, South Korea's 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.

More than 60 countries around the world had done away with laws that made adultery a crime, according to Indian lawyer Kaleeswaram Raj.

In the UK, adultery is not a criminal offence and like many other countries, one of the main reasons given for divorce.

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.

HAVE THERE BEEN PREVIOUS CHALLENGES TO THE LAW?

In 1954, the law was first challenged by a petitioner asking why women cannot be punished for the offence, and that such "exemption was discriminatory", according to the BBC.

The Supreme Court rejected the plea.

Since then, the top court has rejected similar pleas, including the constitutional validity of the law, at least twice - 1985 and 1988.

"The stability of marriage is not an ideal to be scorned," a judge said in 1985.

A married woman had approached the court, demanding the right to file a complaint of adultery against her husband's unmarried lover.

The court, rather patronisingly, described the plea as a "crusade by a woman against a woman".

It said the law was about punishing the "outsider" who "breaks into the matrimonial home" and "violates its sanctity".

Two different panels on law reforms in 1971 and 2003 recommended that women should also be prosecuted for the offence.

"The 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," the 2003 panel, led by a judge, said.

In 2011, the top court, hearing another plea, said the law was facing criticism for "showing a strong gender bias, it makes the position of a married woman almost as a property of her husband".