Don't decriminalise adultery in armed forces: Centre asks Supreme Court to clarify judgment

A five-judge Constitution bench by a unanimous view had in 2018 declared the adultery provision under Section 497 of the Indian Penal Code unconstitutional

The Union government on Wednesday asked the Supreme Court to clarify its 2018 judgment decriminalising adultery, saying this judgment should not apply to the armed forces where a personnel can be cashiered from service if found engaging in adultery with a colleague’s wife.

A bench of Justices R F Nariman, Navin Sinha and K M Joseph issued notice to petitioner, Joseph Shine on the Centre’s plea for clarification on the five-judge bench judgment of September 27, 2018.

Read | Supreme Court declares adultery law unconstitutional

The bench referred the matter to the Chief Justice of India for posting it before a five-judge bench.

"Since the clarification is on a Constitution bench decision, it is appropriate that the Chief Justice issues orders to post this matter before a bench of five judges," the bench said in its order.

In its application, the Defence Ministry contended the court's judgment may cause “instability” within the Services because as defence personnel were 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 were posted on borders or other far-flung areas or in areas having inhospitable weather and terrain.

It said in view of the judgment, 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 Ministry's stand spurred strong reactions from the National Federation of Indian Women, which claimed the Ministry insulted armed forces and the wives and spouses who were away from the family.

"Through the statement, the Ministry is questioning the personal integrity of those who are part of the Armed forces and their spouses. By raising the argument of “concern of the personnel” about their “family indulging in untoward activity”, the Ministry is blatantly questioning the personal integrity of women in particular," it claimed.

"These aspersions reflects the sickening, feudal, Manuwadi attitude of decision-makers in the Ministry," it said, demanding an unconditional apology from the Minister. It also asked the top court to take note of the insensitive attitude.

In a major decision, a five-judge Constitution bench by a unanimous view had in 2018 declared the adultery provision under Section 497 of the Indian Penal Code — enjoining five-year jail term for sexual relationship of a man with a married woman without her husband's consent — as unconstitutional.