The Supreme Court on Wednesday admitted a petition filed by the Ministry of Defence (MoD)seeking to exempt armed forces personnel from the ambit of a Constitution Bench judgment of 2018 that decriminalised adultery .
One of the chief reasons given by the government for seeking exemption is, incidentally, that “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.”
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A three-judge Bench led by Justice Rohinton Fali Nariman said the plea had to be considered by a Constitution Bench because the original verdict, striking down Section 497 (adultery) of the Indian Penal Code, was pronounced by a five-judge Bench in September 2018.
The court referred the case to the Chief Justice of India to pass appropriate orders to form a five-judge Bench to clarify the impact of the 2018 judgment on the armed forces.
The government said in the petition that personnel of the Army, Navy and the Air Force were a “distinct class”. They were governed by special legislations, the Army Act, the Navy Act and the Air Force Act.
Adultery amounted to an unbecoming conduct and a violation of discipline under these three Acts. These special laws imposed restrictions on the fundamental rights of the personnel, who function in peculiar situation requiring utmost discipline. The three laws were protected by Article 33 of the Constitution, which allowed the government to modify the fundamental rights of the armed forces personnel. The judgment of 2018 created “instability”. It allowed a personnel charged with carrying on an adulterous or illicit relationship to take cover under the judgment.
“In cases of adultery, even if there is a charge against the accused, an argument can be raised that we are circumventing the law and what could not be done directly is being done directly through these Acts,” the Ministry said.
‘Distinct class’
Discipline necessary for the performance of duty, crucial for national safety, would break down. The provisions of the Acts should be allowed to continue to govern the personnel as a “distinct class”, irrespective of the 2018 judgment.
It said the court would not, at the time, have been apprised of the different circumstances under which the armed forces operated.
“One has to remember that the armed forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service. Courage and devotion to duty even at the risk to one's life is part of the unwritten contract governing the members of the armed forces,” the Centre said.
Besides, the government pointed out that unlike Section 497, the provisions of the three Acts did not differentiate between a man and a woman if they were guilty of an offence.
“De hors 497, the Army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship,” it said.
Civil remedy
The government also highlighted that the court, despite striking down adultery as a crime, had held that it was “undoubtedly a moral wrong qua the family and the spouse”. The judgment had further recognised that civil remedy existed as adultery remained a ground for divorce.
The 2018 judgment had concluded that the law, through Section 497 IPC, cannot “command” married couples to remain loyal to each other for the fear of penal punishment.
“Two individuals may part if one cheats, but to attach criminality to infidelity is going too far,” the judgment said in 2018.
Section 497 treated a married woman as the commodity of her husband. Adultery was not a crime if the cuckolded husband connived or consented to his wife’s extra-marital affair. Section 497 treated a married woman as her husband’s “chattel”. The provision was a reflection of the social dominance of men prevalent 150 years ago, the court had noted.
“Husband is not the master... Obituaries should be written of these historic perceptions,” it had said.
A five-judge Bench, last year, dismissed petitions to review the 2018 judgment.
