The Supreme Court yesterday agreed to examine the union government’s plea to keep adultery a crime in the armed forces. The government, in its submission, said the 2018 verdict should not apply to armed forces where personnel can be cashiered from service on the grounds of unbecoming conduct for committing adultery with a colleague’s wife.
A bench comprising Justices RF Nariman, Navin Sinha and KM Joseph referred the matter to Chief Justice SA Bobde for setting up of a five-judge Constitution Bench which can clarify the position.
The government had sought clarification and a direction to the effect that the judgment be made inapplicable on special statutes and rules governing the armed forces which take actions on its personnel for indulging in adulterous relationships to ensure discipline in forces.
In September 2018, the Supreme Court had unanimously struck down Section 497 of the Indian Penal Code (IPC) that makes adultery a punishable offence for men. In four separate but concurring judgments, the five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (right to equality).
The apex court had declared Section 198(1) and 198(2) of the Code of Criminal Procedure (CrPC), which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional. Then Chief Justice of India Dipak Misra, who pronounced the judgment in concurrence with Justice AM Khanwilkar, said while adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence.
Non-resident Keralite Joseph Shine, who termed the 158-year-old law enacted by the Britishers as “unjust, illegal and arbitrary and violative of citizens’ fundamental rights”, filed the petition seeking the repeal of Section 497 IPC. Questioning the gender bias in the provision drafted by Lord Thomas Babington Macaulay in 1860, Shine has challenged Section 198(2) of the CrPC.
Adultery was punishable by a maximum of five years in jail or fine or both.