The Supreme Court on January 13 issued notice on a plea filed by the Defence Ministry which sought an exemption for armed forces personnel from the scope of the September 2018 verdict which decriminalised adultery.
In its plea, the Centre submitted that personnel in the armed forces—Army, Navy and the Air Force, were a "distinct class" and were governed by special laws under the Army Act, Navy Act and the Air Force Act. The Centre submitted that top court's 2018 Joseph Shine judgment "may cause instability" in the armed forces since they are expected to function in peculiar conditions including being separated from their family for long durations.
In the armed forces, adultery is unbecoming conduct, akin to a serious offence a notch below cowardice. Adulterous acts in the armed forces may result in court-martial and imprisonment.
"This stands on a different footing as it amounts to unbecoming conduct," the three-judge bench led by Justice Rohinton Nariman said while issuing notice. Since the 2018 verdict was delivered by a five-judge constitution bench, only a bench of similar strength or higher is able to clarify this point. To this end, the matter is now placed before Chief Justice of India SA Bobde for further consideration.
Men and Women equal in the armed forces, no discrimination if adulterous: Centre to SC
The Indian Armed Forces do not discriminate between its male and female personnel if they are found guilty of committing adulterous acts. In other words, unlike Section 497—which was applicable to men only, "the Army would equally proceed against a female subject to the Act if she enters into an adulterous/illicit relationship," the plea read.
"Section 497 has been struck down for the peculiar reasons mentioned in the judgment, namely violation of Article 14 because though the male perpetrator would be guilty, however, the wife is exempt from criminal prosecution," the plea further read.
The Defence ministry—which was speaking for all three wings of the armed forces—added that the 2018 verdict may cause instability as defence personnel are expected "to function in peculiar conditions, during the course of which many a time they have to stay separated from their families for long durations when they are posted on borders or other far-flung areas or in areas with inhospitable weather and terrain."
In the armed forces, there is a system where officers/Junior Commissioner Officers (JCOs) visit the families of personnel who are away on the front. "There will always be a concern in the minds of the Army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity," the petition read.
The Centre further submitted that "discipline is the bedrock of the work culture in Defence Services and an essential ingredient for combat operations." Accordingly, the Indian Constitution had "authorised Parliament to restrict or abrogate certain fundamental rights in their application to armed forces so as to ensure proper discharge of duties and maintenance of discipline."
Husband is not the master of the wife: Supreme Court
The Supreme Court on September 27, 2018, struck down Section 497 of Indian Penal Code (IPC) which criminalised adultery on the grounds that it was unconstitutional and manifestly arbitrary. "Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution," the then Chief Justice of India Dipak Misra had observed.
"It is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written," the judgment had further read. "On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as chattel. It treats her as the property of man and totally subservient to the will of the master," it added.
The verdict, delivered by a five-judge constitution bench, was unanimous and had four concurring opinions.
