Adultery not a crime, rules Indian Supreme Court

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"Also a law that does not give women the right to sue her adulterer husband & can't be herself sued if she is in adultery is unequal treatment & militates against her status as an individual separate entity".

"Any provision treating woman with inequality is not constitutional", he added said.

Adultery is no longer a crime, but it will continue to be grounds for divorce.

It was the second legal decision this month reflecting a more liberal outlook in Indian society with the Supreme Court having on September 6 scrapped a ban on gay sex dating back to 1861.

A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both.

A three-judge Supreme Court bench headed by the then Chief Justice YV Chandrachud had upheld the constitutionality of Section 497 of the IPC. Justice Nariman termed Section 497 as archaic law and concurred with the CJI and Justice Khanwilkar, saying that the penal provision is violative of the rights to equality and equal opportunity to women. The Bench comprised, Chief Justice of India, Dipak Misra, Justices R Nariman, A M Khanwilkar, D Chandrachud and Indu Malhotra. Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.

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Kavita Krishnan, Secretary, All India Progressive Women's Association (AIPWA) and a CPI (ML) Polit Bureau member said decriminalising adultery is welcome and was long overdue. "The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife", the affidavit said.

He further held that Adultery can be ground for civil issues including dissolution of marriage, but it cannot be a criminal offence.

Previously any man who had sex with a married woman, without the permission of her husband, had committed a crime. "You exact fidelity from a woman but not from a man?"

The CJI and Justice Khanwilkar said: "We declare Section 497 IPC and Section 198 of CrPC dealing with the prosecution of offences against marriage as unconstitutional".

Hearing the petition filed by businessman Joseph Shine, the top court, in its August 2 hearing, had said that the adultery law "seems to be pro-women but it is anti-women in a grave ostensible way". But, in a turn of events, the Supreme Court of India unanimously ruled to remove the 158-year old law from the Indian Penal Code (IPC).

"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. Modi advocated amending the law to make it gender-neutral, while maintaining adultery as a criminal offense.

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