India’s top court strikes 158-year-old adultery law
Latest in string of verdicts overseen by retiring judge
NEW DELHI — The chief justice of India’s Supreme Court has presided over a string of verdicts in recent weeks that grant more rights to women, gay couples and religious minorities, challenging deeply conservative Indian society as he prepares to retire from the bench next month.
In the latest decision Thursday, Chief Justice Dipak Misra and the rest of the five-member court struck down a 158-year-old law that treated adultery in certain cases as a criminal offence punishable by up to five years in prison.
The court called the law, which did not allow wives to prosecute adulterous husbands, unconstitutional and noted that a “husband is not the master of woman.” Adultery can still be grounds for divorce in India, the verdict said, but a criminal penalty violated women’s protection to equal rights under the law.
The verdict was hailed by activists and left-of-centre members of India’s Parliament.
“Excellent decision,” tweeted Sushmita Dev, a lawmaker and president of the opposition Congress party’s women’s wing. She said “a law that does not give women the right to sue her adulterer husband … is unequal treatment and militates against her status as an individual.”
The scrapped law allowed men to file charges against other men who had affairs with their wives. Women having affairs could not be prosecuted, but they also couldn’t file a complaint against cheating husbands.
This month, the Misra-led court also struck down a colonial-era law that made gay sex punishable by up to 10 years in prison. The 1861 law, a relic of Victorian England that hung on long after the end of British colonialism, was “a breach of the rights of privacy and dignity,” the court ruled. It added that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
Misra is stepping down as chief justice next week when he turns 65, the mandatory retirement age for Supreme Court judges.
He joined India’s highest court in 2011. His 13-month tenure as chief justice has won him accolades but also drawn unprecedented criticism.
In January, the four most senior justices held a news conference against Misra, listing a litany of problems that they said afflicted the court and risked undermining India’s democracy. Misra met with the dissenting judges, who then continued on the bench.