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. 
 
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 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 “It was an outdated law, which should have been removed long back.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: ||||| Celebrations have erupted in India after the supreme court unanimously ruled to decriminalise homosexual sex in a landmark judgment for gay rights. 
 
 A five-judge bench at the country’s highest court ruled that a 160-year-old law banning sex “against the order of nature” amounted to discrimination on the basis of sexual orientation and was unconstitutional. 
 
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 The judgment, after 24 years of legal challenges, triggered elation among LBGT Indians and their allies across the country and plans for all-night parties in nightclubs in major cities. 
 
 In Mumbai, people marched carrying a giant rainbow banner; in Bangalore they draped themselves in the LBGT flag and let off scores of balloons. In Delhi’s luxury Lalit hotel, run by one of the activists who fought Thursday’s case, and home to one of the city’s furtively gay-friendly nightclubs, staff danced in the lobby. 
 
 “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” said the chief justice, Dipak Misra, in his decision, announced at about 11.30am on Thursday. 
 
 Misra’s was one of four written judgments agreeing to scrap the ban. The rulings quoted Lord Alfred Douglas (“The love that dare not speak its name”), Leonard Cohen (“From the ashes of the gay/ democracy is coming”), William Shakespeare (“What’s in a name? That which we call a rose by any other name would smell as sweet”) and the German philosopher Johann Wolfgang von Goethe (“I am what I am, so take me as I am”). 
 
 Misra said: “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today, and it is only when each and every individual is liberated from the shackles of such bondage … that we can call ourselves a truly free society.” 
 
 Facebook Twitter Pinterest Indian activists celebrate after the hearing. Photograph: Divyakant Solanki/EPA 
 
 Another judge on the bench, Indu Malhotra, said: “History owes an apology to members of the community for the delay in ensuring their rights.” 
 
 The judges accepted estimates that up to 8% of India’s population – 104 million people – might be LGBT, one of the largest Tsuch populations in the world. 
 
 The announcement of the decision drew loud cheers from a crowd gathered on a lawn outside the supreme court. 
 
 “It’s in our favour,” Smriti, 19, who did not give her last name, shouted as she embraced three others before they were mobbed by television cameras. “There’s so much work to be done, but it’s a great first step. We’re not criminals in our own country.” 
 
 Ritu Dalmia, one of the five LGBT campaigners who put their names to the legal petition that succeeded on Thursday, said the verdict made her feel hopeful. 
 
 “I was turning into a cynical human being with very little belief in the system, but honestly this has really shown once again that we are a functional democracy where freedom of choice, speech and rights still exist,” she said. 
 
 “Today is a historic day,” said Anand Grover, one of the lawyers who led the case. “The future is for everybody to be included, to realise their fundamental rights of equality, privacy, dignity et cetera. That is what the court has stated and given directions that this be made available and known to everybody.” 
 
 The decision appears to mark the end of a fraught path to legalising homosexuality in modern India. Cases filed in 1994 and 2001 bounced back and forth for years between courts reluctant to rule on the issue. The Delhi high court ruled against the ban in 2009 but was that overturned four years later by the supreme court. 
 
 Critics of the law say that although prosecutions under section 377 are rare, it was frequently used to blackmail gay and lesbian Indians and contributed to their marginalisation, while also inhibiting efforts to fight diseases such as HIV/Aids. 
 
 One LGBT group, the Humsafar Trust, said its crisis response team in Mumbai had attended to 18 cases in the past two years of gay men who were being blackmailed by the police or by people threatening to report them to authorities. 
 
 It said it had received at least 52 reports of LGBT people experiencing harassment or discrimination in the workplace who were unable to report it because of the ban on homosexuality. 
 
 Lawyers working to overturn the supreme court’s 2013 decision had a breakthrough last year. “What changed everything was last year’s privacy judgment,” said Gautam Bhatia, a Delhi-based lawyer and legal scholar. “In August 2017 the supreme court held there was a fundamental right to privacy, and as part of that, five judges said the 2013 decision was wrong. 
 
 “It was unprecedented. The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.” 
 
 Facebook Twitter Pinterest Celebrations in Mumbai after the country’s top court struck down the colonial-era law. Photograph: Rafiq Maqbool/AP 
 
 When the petition was heard by the supreme court over four days in July, supporters were encouraged when India’s Hindu nationalist government, which had previously expressed support for section 377, chose not to file a submission. 
 
 Swami Agnivesh, a Hindu cleric who supported the abolition of section 377, said the Vedas, the scriptures that undergird many Hindu beliefs, contained nothing that barred same-sex relationships. 
 
 Celebrations in India as court legalises gay sex – in pictures Read more 
 
 “According to the Vedas, all human beings constitute one family, irrespective of what country they belong to or their skin colour,” he said outside the supreme court. “If two adults decide to have according to their sexual orientation, to have a relationship in private, why should anyone have an objection?” 
 
 The decision legalises behaviour that many Indians say was accepted in their culture before the imposition of conservative Victorian mores during the British imperial era. The anti-sodomy law was imposed in the Indian colony as part of a raft of laws against public vice and immorality instituted across the British empire. 
 
 “I’m elated,” said Harish Iyer, a veteran gay activist and writer. “We have thrown out the British once again.” 
 
 But he cast forward to future battles for India’s LGBT community, including marriage, surrogacy and basic acceptance in more conservative regions of the country. “This is the end of the beginning,” Iyer said.
– "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.)