Centre says Adultery cannot be decriminalized for Armed Forces, Supreme Court refers question to Constitution Bench

In September 2018, the Supreme Court had struck down Section 497 IPC, which mad adultery a criminal offence.
Centre says Adultery cannot be decriminalized for Armed Forces, Supreme Court refers question to Constitution Bench
Armed Forces, Supreme CourtImage for representational purposes

The Supreme Court today issued notice in the plea filed by the Central government stating that the 2018 judgment decriminalising adultery under Section 497 of the Indian Penal Code (IPC) should not apply to the Armed Forces.

The matter was heard today by a Bench of Justices RF Nariman, Navin Sinha and KM Joseph.

Attorney General KK Venugopal submitted that Armed Forces personnel can be dismissed from service on grounds of unbecoming conduct for committing adultery with another officer's spouse.

Justice Nariman then stated that the matter would be placed before a five-judge Bench as deemed fit by the Chief Justice of India.

In the military, the offence of “stealing the affections of a brother officer’s wife" – a euphemism for adultery – is a serious offence that is a notch below “cowardice” , which is punishable with even death.

The punishment for adultery in the military derives its power from Section 497 and is not a standalone offence. Similar provisions exist in the other wings of the Armed Forces and prosecutions usually lead to the accused officer’s dismissal from service.

In September 2018, the Supreme Court struck down Section 497 IPC which criminalised adultery, ruling that the nineteenth century law that “treats a husband as the master”, was unconstitutional.

Section 497 made it an offence if a man had sex with the wife of another married man without his “connivance” or “consent”. Under this provision, only men, and not women, could be prosecuted.

“The adultery law is arbitrary and it offends the dignity of a woman”, then Chief Justice of India Dipak Misra, who headed the five-judge Bench, had observed.

Armed Forces, Supreme Court
Adultery: How the Triple Talaq, Privacy, and S. 377 judgments spelt doom for Section 497

Justice Nariman was himself part of that Bench, holding in his separate but concurring verdict,

"Ancient notions of man being perpetrator and woman being victim no longer hold good."

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