Adultery Cannot Be Decriminalized for Armed Forces, Says Centre in Supreme Court
New Delhi, January 13: The Centre on Wednesday submitted a plea in the Supreme Court, saying the apex court's verdict decriminalising adultery by quashing down the Section 497 of the Indian Penal Code should not apply to the armed forces. On the Centre's plea, a bench of Justices RF Nariman, Navin Sinha and KM Joseph issued a notice and referred the matter to Chief Justice of India (CJI). Adultery Must Remain Offence For Forces, Army Tells Defence Ministry, Likely to Approach Supreme Court.
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On September 27, 2018, a bench comprising of then Chief Justice Dipak Misra, Justices Khanwilkar, Nariman, Chandrachud and Malhotra struck down Section 497, which punished adultery, holding that it violated a woman's right to dignity, which leads to the infringement of Article 21 of the Constitution. This provision had allowed a husband to prosecute any man who engaged in a consensual sexual relationship with his wife. Adultery Not a Crime Anymore! Expert Explains Attractions Outside Marriage, Cheating and Extramarital Relationships.
"Why is a clarification needed?" asked Justice Nariman from Attorney General KK Venugopal on the Centre's plea, according to a report by Live Law. "The judgment does not take into account the Armed Forces Act. In the Army Act, there is a provision (of 'unbecoming conduct') where the officer can be court-martialed," Attorney General KK Venugopal replied.
While there is no offence specified as "adultery" in acts for armed forces, Sections 45 and 63 of the Army Act, Sections 45 and 65 of the Air Force Act and Sections 54 (2) and 74 of the Navy Act deal with "unbecoming conduct".
"It appears that while deciding upon the constitutionality of Section 497 of IPC (Adultery), this Hon'ble Court apparently did not take into account or may not be apprised with the peculiar service conditions of the Defence Personnel as stated aforesaid and the fact that the framers of the Constitution had specifically authorized the Parliament for abrogation of their fundamental rights in terms of Article 33 of the Constitution," the Centre stated in its plea.
Section 497 was challenged by Joseph Shine, who is 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.
