Verdict decriminalising Adultery does not include Armed Forces, Supreme Court clarifies

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It was the Centre's position before Supreme Court that judgment which decriminalised Adultery would cause instability within the Applicants Services 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

The Supreme Court today clarified that its 2018 judgment by which it struck down the penal provision of Adultery from the Indian Penal Code (IPC) does not apply to Armed forces.

A constitution bench of Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar noted that the Army Act allows officers to be proceeded against for "unbecoming" acts which includes adulterous relationship with spouses of fellow army officers and that the Supreme Court had not included the Armed forces while passing the landmark Josephine Shine judgment in 2018.

Court was hearing the Defence Ministry's plea seeking exemption from applicability to the Armed Forces, the decriminalisation of Adultery laws. In effect, the top court has agreed with the Centre's position that persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54 (2) or 74 of the Navy Act. 

Highlighting that the exemption is imperative, the Centre had stated 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”.

The Top Court had decriminalised adultery by it's 2018 verdict [in Joseph Shine Vs. Union of India], holding that the19th century provision of the Indian Penal Code treated a wife as chattel of her husband. The Court had further observed that a man committing adultery with another man's wife was punishable under the law while the wife, who as per law had no distinct legal personality, could not be punished.

Today, the Additional Solicitor General (ASG) Madhavi Divan informed Supreme Court that though section 497 looked at the offence of adultery in the context of preserving marriage as a social institution as its object was to control the sexuality of the wife to preserve the bloodline and that archaic approach was struck down, it was their concern that the applicability of the offence could impact operational efficiency and readiness of India's Armed Forces. "We are concerned with operational efficiency which has a direct nexus with security of the nation," she said.

"We must observe and clarify that the judgement of this court was not at all concerned with the provisions of the armed forced acts. This court was neither called upon nor has it ventured to pronounce on effect of section 45 and section 63 of the Army Act," the bench said, adding that the judgment of this court was concerned only with validity of section 497 IPC and section 198 CrPC.The reason given was articles 14, 15 and 21 of the Constitution. “In this case, this Court had no occasion to consider the effect of the Armed Forces Acts,” court said.

Case Title: Josephine Shine Vs Union of India

Statute: Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950 Article 33, Constitution of India, Section 497, Indian Penal Code.