The Union government argued against decriminalising adultery for armed forces, as they function in peculiar conditions, and are required to be away from family for long periods.

Indian army soldiers stand guard near Line of Control LOC at Balakote sector in Poonch districtImage for representation/PTI
news Court Wednesday, January 13, 2021 - 16:51

The Supreme Court on Wednesday issued notice on the Union government’s plea that a 2018 apex court judgment in the Joseph Shine case to decriminalise adultery under Section 497 of the Indian Penal Code should not be applicable to the armed forces.

The Union government argued that the top court verdict on adultery may cause instability within the armed forces, as defence personnel were expected to function in peculiar conditions. The government’s counsel emphasised that during the course of their service, defence personnel many times stayed away from their families for long durations, as a result of their posting on borders or other far-flung areas.

A bench headed by Justice RF Nariman and comprising Justices Navin Sinha and KM Joseph also sent the case to the Chief Justice for listing it before a five-Judge bench. During its 2018 judgment, the top court had noted that adultery can only be a ground for divorce.  

Attorney General KK Venugopal, representing petitioner Defence Ministry, submitted that armed force personnel can be dismissed from service on ground of unbecoming conduct on account of adultery with brother officers' spouses. He added that the judgment does not consider the Armed Forces Act, under which there is a provision for court martial of an officer on account of ‘unbecoming conduct’, LiveLaw reported. However, Justice Nariman said that ‘unbecoming conduct’ is “not strictly adultery because the section (497, IPC) has been struck down and will still be unbecoming conduct". The person would be liable under that.” A five-judge bench had earlier struck down section 497 of the Indian Penal Code which criminalises adultery in September 2018.

The Centre argued though that while deciding on the constitutionality of the particular section, the court had not taken into account the “peculiar service conditions” that defence personnel work under and that Constitution writers had authorised the Parliament to abrogate defence personnel’s fundamental rights under Article 33 of the Constitution. Under this article, the Parliament can decide up to what extent fundamental rights can apply to armed forces to ensure proper discharge of their duties and maintenance of discipline.

The application filed by the Union government raises two questions. One, whether those who fall under the aegis of the Army Act, by virtue of Article 33 of the Constitution, should continue to be subject to rigours of section 497 of the IPC. And two, whether “promiscuous or adulterous acts” by persons of the armed forces can be governed by section 45 and section 63 (that deal with ‘unbecoming conduct’) of the Army Act or relevant corresponding sections in the Navy, and Air Force Acts, as these are special legislations, irrespective of the Supreme Court’s judgement in the Joseph Shine case as this would count as abrogation of fundamental rights allowed under Article 33 of the Constitution.

After a brief hearing, Justice Nariman said that the matter would be placed before a five-Judge Bench as deemed fit by the Chief Justice of India.

The now struck down section 497 of the IPC says: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." Adultery was punishable by a maximum five years in jail or fine or both. Striking down the law, the apex court had said that the section 497 of the IPC was manifestly arbitrary, archaic law which is violative of the rights to equality and equal opportunity to women. The bench had also observed that the provisions had chauvinistic undertones and also the women were treated as belongings.

Section 497 was challenged by Joseph Shine, an Indian settled abroad. Shine had contended that the law was archaic and if the law was to safeguard the inviolability of family, then both husband and wife should have the right to prosecute the cheating partner. Also, the sexual act could not be punished, if it were to be done with the consent or connivance of the husband of the woman.

In many countries, adultery has ceased to be a crime - New Zealand, Brazil, Japan, China, Japan, Australia, the Netherlands, Denmark, France, Germany etc., yet it continues to be a crime in many countries in the Middle East and Africa.

(With agency inputs)

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