Centre approaches SC seeking exemption of armed forces from judgement on adultery decriminalisation

New Delhi [India], January 13 : The Central government on Wednesday approached the Supreme Court urging to exempt armed forces from the purview of its 2018 judgement of decriminalising the criminal offence of adultery.
A bench headed by Justice R F Nariman issued a notice on the Centre's plea to the petitioner on whose plea adultery was decriminalised in 2018 and sent the matter to Chief Justice of India SA Bodbe for listing it before a five-judge bench.
In 2018, the five-judge Bench had decriminalised adultery and said it could only be a ground for divorce.
The Centre through the Ministry of Defence (MoD) approached the top court saying striking down of Section 497 of the India Penal Code (adultery charge) shouldn't apply to armed forces where such acts amount to 'unbecoming conduct'.
During the brief hearing, Attorney General KK Venugopal, appearing for MoD, apprised the top court Bench that the Army, Navy, and Air Force have provisions under which those caught in adulterous acts are liable to be punished for 'unbecoming conduct' by which they can be court-martialed.
The MoD said that when defence personnel are posted in forward inhospitable areas, their families are taken care of at base camp by field unit JCOs and officers and those posted in forward areas shouldn't harbour any misgiving about adulterous or promiscuous activity by caring officers.
"The judgement may cause instability within its 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 when they are posted on borders or other far-flung areas or in areas with inhospitable weather and terrain," the application of MoD stated.
"In view of the judgement, 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," it added
It further stated that armed forces personnel can be cashiered from service on grounds of unbecoming conduct for committing adultery with a colleague's wife.
The application stated that "unlike IPC Section 497, the Armed Forces do not differentiate between a man and a woman, who is subject to the Army Act if they are guilty of an offence. In other words, the Army would equally proceed against a woman as per the Act, if she enters into an adulterous/illicit relationship. Also, the Constitution's Article 33 specifically allows Parliament to restrict or modify the operation of fundamental rights with regard to armed forces."
The top court on September 27, 2018 verdict had struck down the 158-year law that made adultery a crime in India. The five-judge bench, also comprising Justice Nariman, while pronouncing the judgement had said that the law discriminated against women as it considered them as chattel or property of a man.
Section 497 had made it an offence if a man had sex with the wife of another married man without his "connivance or consent". Under the law, only men, and not women, could be prosecuted.