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  • Kavita Krishnan, a renowned feminist activist welcomed the judgement by the Supreme Court which decriminalized sexist adultery law Thursday.

    Kavita Krishnan, a renowned feminist activist welcomed the judgement by the Supreme Court which decriminalized sexist adultery law Thursday. | Photo: Facebook/Kavita Krishnan

Published 27 September 2018

The unanimous court decision by the five-judge constitution bench will remove the archaic law.

On Thursday, India’s Supreme Court decriminalized adultery, a move observers say is a step towards gender equality and freedom. The "sexist" Adultery Act, which was first introduced under British colonial rule in 1860, has been declared unconstitutional and discriminatory.

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According to the Adultery Act, a woman's husband could sue a man for having a relationship with his wife without his consent with the convicted man potentially imprisoned for five years. Rights groups have criticized the colonial-era law for viewing women as men's property since women can't sue their husbands for the same act.

The judges also said that Section 497 violates Article 14 of the Indian constitution, which falls under the category of fundamental rights of the citizens, ensures every citizen's equality before the law, and equal protection under Indian law within India's territory.

Dipak Misra, the Chief Justice of India’s Supreme Court, said he relied on the recent Triple Talaq judgment of Justice Rohinton Nariman to come to his decision: "Discrimination will invite the wrath of the Constitution. Equality is the fundamental principle. Two judges declare Section 497 as arbitrary and it offends the dignity of women.”

"Adultery can be grounds for civil issues including dissolution of marriage but it cannot be a criminal offense ... adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage," Misra said while reading the verdict.

Women rights activists have welcomed the "long overdue court verdict."

"Our political class should have decriminalized adultery and homosexuality a long time ago, instead of leaving it to the courts," prominent women's rights activist and the secretary of All India Progressive Women’s Association, Kavita Krishnan told Al Jazeera.

However, the enthusiasm of rights activists is not shared by the current Bharatiya Janata Party-led government, which stated in court that the ruling would erode "the sanctity of marriage and the fabric of society at large".

Many right-wing groups have agreed with the government’s sentiments. A right-wing organization called Hum Hindu (We are Hindus) said that "Public morality and the social fabric will collapse if extra-marital relations are allowed. We will help the government in drafting a counter to this that can be issued as an executive order to criminalize these immoral acts again."

However, rights groups, especially gender rights activists, are hoping that the court will criminalize marital rape in India, which the ruling BJP opposes as it believes that criminalizing marital rape could destabilize marriages and make men vulnerable to their wives.

Indian businessman Joseph Shine filed a petition last year challenging the adultery law which led to Thursday's verdict. The ruling may be one of Chief Justice Misra's last before his retirement on Oct. 2.

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