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In this archive photo from August 22, 2017, a gardener works in the lawns of the Supreme Court in New Delhi. (Altaf Qadri / AP)
NEW DELHI – The Indian high court on Thursday passed a 158-year-old law punishing those accused of extramarital affairs and decriminalizing adultery.
The verdict is the latest in a series of progressive judgments by India's highest court. Judges also decriminalized homosexuality and restricted the use of a biometric database of government by private companies in September, recognizing the arguments of privacy activists.
"It is time to say that this husband is not the master of the wife," said Chief Justice Dipak Misra, pronouncing the verdict. "The legal sovereignty of one sex on the other sex is false."
Married women in India face tremendous pressure to limit contact with men other than their husbands. Family members often require them to dress conservatively or stay inside the house in India's deeply conservative society.
Until Thursday, Article 497 of the Indian Penal Code provided for a maximum penalty of five years for 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 did not. The partners of adulterous married men, on the other hand, did not have the same consequences under the law.
The law has been used as a blackmail tool to keep women in unhappy marriages or to prevent them from seeking support in divorce proceedings.
"This has had a deterrent effect on many divorce cases," said Indira Jaising, a Supreme Court lawyer. "What happened before was that husbands hired professional detectives to check on wives and threaten or prosecute."
Judge Indu Malhotra, the only woman on the bench of five judges to have passed the unanimous verdict, pointed out the absurdity of the law by asking, "Is the consensing husband's wife treated as a case?" This equates to a sexist bias.
The court's decision was well received by women's rights advocates and lawyers, who argued that the law treated women as victims and denied them the agency.
"It was an outdated law that should have been withdrawn for a long time," said Rekha Sharma, president of the National Commission for Women, speaking about the law at Asian News International. "Although the British have done away with it for a long time, we were still stuck with it."
Adultery will remain a ground for divorce, and adulterers can be criminally charged with reducing suicide, in cases where extramarital cases lead to suicide, the judges said.
The series of cases decided by the court comes as Misra, the chief justice, prepares to retire. He chaired a proceeding that made privacy a fundamental right and another that overturned a law authorizing the Muslim practice of "instant" divorce last year, widely seen as improving the rights of Muslim women. The judge was also confronted with a rare public "revolt" by four high-ranking judges who did not agree with the way in which he assigned the judges' cases.
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