India’s top court decriminalised adultery in a landmark judgment aimed at upholding the right to equality and freedom, scrapping a law first brought in under British colonial rule in 1860.
In a unanimous judgment on Thursday, the five-member bench of the top court struck down a law that meant a man who had sex with a married woman without getting her husband’s permission could be charged and face up to five years in jail if convicted.
“Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” Chief Justice of India Dipak Misra said while reading out the judgment.
It is the second landmark judgment in the personal sphere in India this month. Three weeks ago, the Supreme Court scrapped a colonial-era ban on gay sex.
Appearing for India’s Hindu nationalist government, Additional Solicitor General Pinky Anand had argued last month that adultery should remain a criminal offense to ensure the sanctity of marriage.
While very few people have been sentenced for adultery in recent years, the threat of charges has often been used in marriage disputes to put pressure on women, lawyers said.
“Physicality is an individual choice,” Justice DY Chandrachud, one of the five-member bench, said in the ruling. The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of past”.
Many Asian countries uphold adultery as a crime. In the United States, adultery is still considered a crime in some states.