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The Indian Supreme Court has decriminalized extramarital sex or adultery in an innovative ruling on Thursday.
The archaic 158-year-old law that existed under section 497 of the Indian Penal Code stated that having sex with a married woman without her husband's prior consent was a criminal offense. In a landmark decision, the law was overturned by a panel of five judges from the country's highest court. While the law imposed monetary penalties, or up to five years in prison, or both, for the male abuser, the woman in the scenario remained unscathed because she was considered the victim.
In addition, the Constitution contains no law authorizing a woman to sue her husband or wives for sexual intercourse outside of their marriage and without their consent.
"Any legislative provision that affects the individual dignity and equality of women invites constitutional anger. It is time to say that the husband is not the master of the wife. The legal sovereignty of one sex over another is wrong, "Chief Justice Dipak Misra said in a statement he co-wrote, according to Live Law.
Mishra added that adultery "can not be a crime", but it could still be used as a ground for civil suits such as divorce.
People's attention was drawn to the law of the colonial era after Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned in August to get rid of the law, arguing that it discriminated against men and women.
"Married women are not a special case for the prosecution of adultery, they are not in any way different from men," said his petition.
Shine's 45-page petition cited various references to gender equality and women's rights through quotes from personalities such as the poet Ralph Waldo Emerson, women's rights activist Mary Wollstonecraft, and the author. former Secretary-General of the United Nations, are the property of men. "
Kaleeswaram Raj, a petitioner's lawyer, said the law was often "misused" by husbands to gain an unfair advantage in divorce cases.
"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."
While ruling against the law, the Supreme Court stated that it aimed to control "the sexuality of women (and) carries the autonomy and dignity of women", which was arbitrary and unconstitutional. "The old notion that the man is the author and the woman victim of adultery are no longer valid," said Judge Rohinton Fali Nariman.
The Indian government was in favor of maintaining the law because, they said, it served to protect the sanctity of marriage and worked for the "public good". The administration of Prime Minister Narendra Modi even proposed a woman who has sex with a married man. However, the Supreme Court refused the condition, opting to eradicate the law altogether.
"The protection of 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 the "public good" in a broken marriage? Asked Misra at the August auditions, reports Quartz.
The landmark decision is the second major change introduced in the Indian constitution this month, after the Supreme Court overturned a 157-year-old law that criminalized sex between homosexuals in India.
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