Published: Fri, September 28, 2018
World Media | By Shelia Harmon

India has legalised adultery

India has legalised adultery

The court struck down Section 497 of the Indian Penal Code, declaring that it offends the dignity of women and that it is tantamount to subordination of women.

In 1954, the court upheld adultery as a crime arguing "it is commonly accepted that it is the man who is the seducer, and not the woman".

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. The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty.

Section 34 (d) grants the right of a married person to sue his/her spouse on the grounds of adultery, fornication, bigamy, rape or any other unnatural offence.

Gay sex is considered taboo by many in socially conservative India, and was reinstated as a criminal offence in 2013 after four years of decriminalisation.

CJI Misra clarified that adultery remained a ground for civil issues, including dissolution of marriage.

The petition seeking the repeal of Section 497 IPC had initially come up before the Supreme Court in December 2017.

"It's time to say husband is not the master", he said.

Representing the Centre, additional solicitor general Pinky Anand said marriages in India were not an exclusive affair; they involved families of both the parties and the society at large, hence the State becomes involved.

The apex court declared that adultery is not a crime and struck down the anti-adultery law, saying it dented the individuality of women and treated them as "chattel of husbands".

The top court, which held that the adultery law is a relic of the past, said autonomy is intrinsic in dignified human existence and Section 497 disallows women from making choices. Needless to add, the heteronormative nature of the Section 497 was a gaping loophole willfully exploited by married and unfaithful men to the detriment of their wives.

"We have to look at judgements of the Supreme Court with regards to fundamental rights, whether it is equality of either men or women or everyone before the law or it is about right to privacy or it is about freedom of speech and expression".

Taiwan punishes adultery by up to a year in prison and it is also deemed a crime in Indonesia.

"The institution of marriage must be protected".

The decision to repeal the law was seen as a major victory for India's LGBT activists and supporters after years of determined struggle.

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.

After the ruling, opponents of the law danced and waved flags outside the court. By marrying, she has not consented to refrain from sexual relations outside marriage without the permission of her husband.

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