text: India’s top court has ruled that adultery is no longer a crime, declaring that the colonial-era law is unconstitutional and discriminatory against women. 
   
   A five-judge bench of the supreme court unanimously ruled that the criminal offence of having a sexual relationship with a woman without her husband’s consent was archaic and deprived women of agency. 
   
   The case, brought by an Indian businessman living in Italy, sought to have section 497 of the Indian penal code and another similar provision made gender neutral. But the court said the offence, which carried a prison sentence of up to five years, was arbitrary and needed to go. 
   
   “It is time to say husband is not the master,” said the chief justice, Dipak Misra. He quoted John Stuart Mill: “Legal subordination of one sex over another is wrong in itself.” 
   
   Indu Malhotra, one of two women among the 25 judges on the court, said: “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by.” 
   
   There is no official data on how frequently men were prosecuted under the law, but it was often raised in divorce proceedings, lawyers say. 
   
   The decision is one of several socially progressive rulings by the court this session. This month the justices ruled to decriminalise homosexuality, and on Friday they will decide on a case about whether women in their menstruating years can be restricted from entering Kerala state’s Sabarimala temple. 
   
   Indian court upholds legality of world's largest biometric database Read more 
   
   Like the decision to legalise homosexual acts, some advocates against the adultery law characterised Thursday’s decision as an act of decolonising the country’s Raj-era criminal code. 
   
   “I welcome this judgment by the supreme court,” said Rekha Sharma, the head of India’s National Commission for Women. “It was an outdated law, which should have been removed long back. This is a law from British era. Although the British had done away with it long back, we were still stuck with it.” 
   
   The court has been more willing to affirm British-era legislation when it comes to restricting speech, in recent years endorsing imperial laws against criminal defamation and creating (but later dropping) a rule that Indians must stand while the national anthem is played in movie theatres. 
   
   “I wouldn’t yet call it a progressive era in the court,” said Gautam Bhatia, a Delhi-based lawyer and legal scholar. He said in cases such as the adultery or homosexuality rulings, the court was dispensing with laws that had clearly fallen behind social mores. “These are the low-hanging fruit,” he said. 
   
   Thursday’s decision was decried by some prominent feminists including Swati Maliwal, Delhi’s commissioner for women. She said the adultery law should have become gender neutral because it could be a deterrent against men abandoning their families, in a society where women wield little power, especially in poorer or deeply patriarchal areas of the country. 
   
   “Thousands of women approach the commission, many from disadvantaged backgrounds, saying their husbands are acting in an adulterous manner and have left them without support to look after the children,” Maliwal said. “At least with this law a woman can get a sense of justice, and the men have a kind of fear that when they enter a relationship, it has some sanctity that they have to live with. 
   
   “In an ideal society I would totally agree with this judgment, but we are not talking about an ideal society,” she said. 
   
   Lawyers for the central government had opposed scrapping the adultery law, arguing that diluting sanctions against infidelity would “result in laxity of the marital bonds”. The law had survived three previous legal challenges, the most recent in 1988. 
   
   The succession of high-profile cases provides a notable send-off for Misra, an at times controversial chief justice who has been the subject of public complaints from his fellow judges over his handling of politically sensitive cases. 
   
   The Delhi high court is currently examining another law that makes an exception for sexual assault if the perpetrator and victim are married. The government as well as several men’s rights groups have filed petitions against scrapping the marriage exception. 
   
   Karuna Nundy, a supreme court lawyer leading the case to overturn the marital rape law, said Thursday’s judgment bolstered her argument. “Both laws based on the doctrine of a man owning his wife, the wife being property,” she said. 
   
   Nundy said the court had shown in recent judgments that it now believed “sexually autonomy is not forfeited at the marital door”. ||||| Image copyright Reuters Image caption Under the law the woman could not be punished as an abettor - the man was considered to be a seducer 
   
   India's top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which it said treated women as male property. 
   
   Previously any man who had sex with a married woman, without the permission of her husband, had committed a crime. 
   
   A petitioner had challenged the law saying it was arbitrary and discriminated against men and women. 
   
   It is not clear how many men have been prosecuted under the law - there is no data available. 
   
   This is the second colonial-era law struck down by India's Supreme Court this month - it also overturned a 157-year-old law which effectively criminalised gay sex in India. 
   
   While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, "it cannot be a criminal offence". 
   
   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. He argued that it discriminated against men by only holding them liable for extra-marital 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, Mr Shine said, also "indirectly discriminates against women by holding an erroneous presumption that women are the property of men". 
   
   In his 45-page petition, Mr 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. 
   
   Image copyright EPA Image caption 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. 
   
   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". 
   
   What did the judges say? 
   
   All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. 
   
   "Husband is not the master of wife. Women should be treated with equality along with men," Chief Justice Misra said. 
   
   Judge Rohinton Nariman said that "ancient notions of man being perpetrator and woman being victim no longer hold good". 
   
   Justice DY Chandrachud said the law "perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes". 
   
   He said the law sought to "control sexuality of woman (and) hits the autonomy and dignity of woman". 
   
   Critics have called the law "staggeringly sexist", "'crudely anti-woman'", and "'violative of the right to equality'". 
   
   "The legal system should not regulate whom one sleeps with," wrote Rashmi Kalia, who teaches law. 
   
   The main concern, according to the respected journal Economic and Political Weekly, is "not whether the expectations of fidelity in a marriage are right or wrong, or whether adultery denotes sexual freedom." 
   
   "It is whether the state can and should monitor a relationship between adults that is too complex, sensitive and individual for it to be capable of doing in a just manner," the journal wrote in a recent editorial. 
   
   Where else is adultery a criminal offence? 
   
   Image copyright Mansi Thapliyal Image caption The latest challenge was made in view of the "changed social conditions" 
   
   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". 
   
   Image copyright Mansi Thapliyal Image caption Critics have called the law "violative of right to equality" 
   
   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". 
   
   What has the reaction been to the latest ruling? 
   
   Many Indians were not even aware the law existed. However, after Thursday's ruling, people have been largely supportive of the verdict. 
   
   Others said the top court should now move to make marital rape a criminal offence: 
   
   But a few felt that the law should have been made gender neutral instead of being struck down:
target: – "It is time to say husband is not the master," Dipak Misra, the chief justice of India's top court, says in a ruling striking down the country's adultery law. "Legal sovereignty of one sex over another is wrong." The ruling jettisoning the 158-year-old colonial-era law means adultery is no longer a crime in India, the BBC reports. Long criticized as archaic and sexist, it made it illegal for a man to have sex with a married woman without the permission of her husband. Misra said that while adultery could certainly be an issue in civil cases like divorce, "it cannot be a criminal offense." The law had been challenged three previous times, most recently in 1988. "I welcome this judgment by the supreme court," says Rekha Sharma, the head of India’s National Commission for Women. "It was an outdated law, which should have been removed long back." She notes that the law dated from the British colonial era—but the British got rid of their version of the law many years ago. Government lawyers had urged the court to keep the law, arguing that "making adultery legal will hurt marriage bonds." The Guardian reports that those who brought the case had only sought to make the law gender neutral, but the court decided to simply get rid of it. (Earlier this month, the court struck down a colonial-era law banning gay sex.)