Adultery isn’t a punishable offence in India. In 2018, the Supreme Court nullified section 497 of IPC (Indian Penal Code) that made adultery a punishable offence for men. Then the Constitution Bench judgement was challenged in review petitions and, in May 2020, a five-judge Review Bench held that the historic verdict didn’t need any revisit. However, the matter is back in the spotlight now, with the government seeking clarity from the apex court that the ruling didn’t override the Armed Forces Act in which the accused personnel can be discharged from service for ‘stealing the affection of brother officer’s wife’.
Why clarity on the judgement is crucial for the armed forces and how the apex court reacted to the government’s appeal on Wednesday? Before exploring these details, look at what section 497 of IPC said on adultery.
The 158-year-old adultery law reads: ‘Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.’
Simply speaking, a man could be punished for the offence of adultery if he had consensual sexual intercourse with the wife of another man without the consent of her husband.
Pronouncing a landmark verdict in September 2008, a five-judge Constitution bench led by CJI Dipak Misra termed the archaic law ‘unconstitutional’ and ‘arbitrary. The bench however held that adultery still could be a ground for divorce.
Now the government seeks direction from the apex court in absence of which it claimed the verdict may run counter to the Armed Forces act and cause instability.
According to media reports, Attorney General K K Venugopal and Additional Solicitor General Madhavi Goradia Divan told a bench of Justices R F Nariman, Navin Sinha and K M Joseph that there is no offence specified as ‘adultery’ in the entire Army Act or Rules.
But, the law officers reportedly added, Article 33 of the constitution (sections 45 and 63 of the Army Act, Sections 45 & 65 of the Air Force Act and Sections 54 (2) and 74 of the Navy Act) deals with an offence categorised as ‘unbecoming conduct’ under which ‘stealing the affection of brother officer’s wife’ can warrant a punishment of dismissal from service.
The government told the apex court that the families of Defence Personnel, during their deployment on borders or faraway areas, are looked after by their units at their accommodations. If there is no law against adultery, the defence personnel posted at inhospitable locations could be perturbed by the thought that someone may establish an illicit relationship with their family members.
Thus, the centre requested the Supreme Court to either make an exception to its ruling on section 497 of IPC keeping adultery as an offence in the Armed Forces. Or they should be allowed to be governed by the provisions of the Army Act.
Hearing the centre’s arguments, the Supreme Court has agreed to consider its plea to retain adultery as a crime in the armed forces. The three-judge bench has referred the matter to CJI S A Bobde to set up a five-judge Constitution Bench to examine the government’s request.