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Reuters
Under the law, the woman could not be punished as an accomplice – the man was considered a seducer.
The Indian Supreme Court has declared that adultery is no longer a criminal offense.
The 158-year-old colonial law stipulated that every man who had sex with a married woman, without the permission of her husband, was guilty of adultery.
It is unclear how many men have been prosecuted under the law since its inception – no data available.
One petitioner challenged the law by saying that it was arbitrary and discriminatory against men and women.
This is the second law of the colonial era that was overturned by the Supreme Court this month. It also overturned a 157-year-old law that effectively criminalized homosexual sex in India.
In reading the adultery judgment, Chief Justice Dipak Misra stated that, while this may be grounds for civil matters such as divorce, "it can not be a criminal offense".
Who challenged the law?
Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, asked the Supreme Court to overturn the law.
"Married women are not a special case for the prosecution of adultery, they are not in any way different from men," said his petition.
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The law, said Shine, "indirectly compromises women by mistakenly assuming that women are the property of men".
In his 45 – page petition, Mr. Shine generously quotes the American poet Ralph Waldo Emerson, women 's rights activist Mary Wollstonecraft and former UN Secretary – General Kofi Annan on the issue of "The Rights of Women". gender equality and women's rights.
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EPA
Earlier means have been rejected by the court in the interest of "stability of marriages"
However, the ruling BJP government in India objected to the petition, insisting that adultery should remain a criminal offense.
"Diluting adulterous laws will have an impact on the sanctity of marriages, and making legal adultery will undermine marriage," said a lawyer in court, adding that "Indian philosophy places a premium on institution and the sanctity of marriage ".
What about the law on adultery?
The law stipulated that the woman could not be punished as an accomplice. Instead, the man was considered a seducer.
Nor did it allow women to sue an adulterous husband.
A man accused of adultery could be sent to prison for up to five years, fined, or both.
And although there is no information on actual convictions under the law, Kaleeswaram Raj, a petitioner's lawyer, said the law on adultery was "often misused" by husbands in matrimonial disputes such as divorce or family matters.
"Men often lodged criminal complaints against alleged or imagined men whom they alleged to have affairs with their wives, but these accusations could never be proven, but ended up tarnishing the reputation of their separated or divorced partners."
Interestingly, Indian folklore and epics abound with stories of extra-marital love. According to the scholar J Moussaief Masson, most of the Sanskrit love poems are "about the unlawful love".
But Manusmriti, an ancient Hindu text, says, "If men persist in seeking intimate contact with the wives of other men, the king should give them punishments that inspire terror and banish them."
What did the judges say?
The five Supreme Court judges who examined the case said the law was archaic, arbitrary and unconstitutional.
"The old notions that the man would be the perpetrator and the woman victim are no longer valid," Judge Rohinton Nariman said.
Judge DY Chandrachud said that the law "perpetuates the subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes".
He said the law aimed to "control the sexuality of women (and) carries the autonomy and dignity of women".
Critics described the law as "incredibly sexist", "grossly anti-woman" and "violation of the right to equality".
"The legal system should not regulate who we sleep with," writes Rashmi Kalia, who teaches law.
The main concern, according to the respected magazine Economic and Political Weekly, is "not whether fidelity expectations in a marriage are right or wrong, or whether adultery denotes sexual freedom".
"The question is whether the state can and must monitor a relationship between adults that is too complex, sensitive and individual to be able to act in a fair way," the paper writes in a recent editorial.
Where is adultery a criminal offense?
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Mansi Thapliyal
The last challenge was posed in the light of "changed social conditions"
Adultery is considered illegal in 21 US states, including New York, although surveys show that while most Americans disapprove of adultery, they do not consider it a crime.
"The criminal laws remain in force for mostly symbolic reasons, and there is not enough risk that anyone will incur the political costs of repealing them," said Deborah Rhode, law professor at Stanford University and author. of Adultery: the law told the BBC.
Adultery is prohibited in Sharia or Islamic law, so it is a criminal offense in Islamic countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia.
Taiwan punishes adultery for up to one year in prison and is also considered a crime in Indonesia. In fact, Indonesia is drafting laws prohibiting consensual sexual relations outside the institution of marriage.
In 2015, the Supreme Court of South Korea overturned a similar law under which a man could be imprisoned for two years or less for adultery. The court said the law violated self-determination and privacy.
According to Indian lawyer Kaleeswaram Raj, more than 60 countries around the world have eliminated the laws making adultery a crime.
In the UK, adultery is not a criminal offense and, like many other countries, is one of the main reasons given for divorce.
Couples can not use adultery as a reason for divorce if they live together as a couple for six months after acquaintance with the infidelity.
Have there been previous challenges to the law?
In 1954, the law was challenged by an applicant who asked why women could not be punished for this offense and that this "exemption was discriminatory".
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Mansi Thapliyal
Critics called the law "violation of the right to equality"
The Supreme Court rejected the plea.
Since then, the higher court has rejected similar means, including the constitutional validity of the law, at least twice – 1985 and 1988.
"The stability of marriage is not an ideal to despise," said a judge in 1985.
A married woman had approached the court, demanding the right to file a complaint for adultery against her husband's single lover.
The court, condescendingly, called the plea "crusade by a woman against a woman".
She said the law was intended to punish "the stranger" who "breaks into the marital home" and "violates her holiness".
In 1971 and 2003, two different panels on legislative reform recommended that women also be prosecuted for this offense.
"The company hates marital infidelity so there is no reason not to inflict similar treatment on the wife who has sex with a married man," said the panel of 2003, led by a judge.
In 2011, the trial court, hearing another plea, said the law was being criticized for "showing a strong sexist bias, which makes that the position of a married woman is almost the property of her husband ".
