Keep adultery a crime in forces: Centre to SC

The judgment may cause instability within the Services, as defence personnel are expected to function in peculiar conditions MINISTRY OF DEFENCE IN ITS PLEA

NEW DELHI: The Centre has sought a clarification from the Supreme Court to the effect that the 2018 order decriminalising adultery would apply only to civilians and not defence personnel because not prosecuting soldiers for adultery could cause “instability” in the armed forces.

Maintaining that “honour is the sine quo non of the services,” a plea by the ministry of defence (MOD) asserted that adultery must remain a valid ground to prosecute defence personnel under army laws.

In September 2018, a fivejudge constitution bench struck down Section 497 of the Indian Penal Code, declaring it to be unconstitutional and violative of right to equality of women in treating them as “chattel” (an item of property) and inferior to their husbands.

Section 497 made adultery an offence only with respect to am an, who has a relationship with wife of someone else.

The wife was considered neither adulterous nor an abettor in law, while the man could be jailed for up to five years. In that case, the Centre defended the law, saying it protected sanctity of marriages.

On wednesday, Mo d’ s clarification plea was argued by Attorney General KK Venugopal before a bench, headed by Justice Rohinton F Nariman, where the law officer submitted that the armed forces required a completely different standard of discipline and that, therefore, the army act and other pertinent laws must be treated as outside the scope of the 2018 judgment.

“Adultery can be defined as an ‘unbecoming act’ or punishable under “good order and discipline” rule under the army act. Such officers can be court martialed and cashiered. We thus want a clarification that the constitution bench judgment is not applicable to personnel of the armed forces,” Venugopal told the bench, which also included justices Navin Sinha and KM Joseph.

Venugopal added that this clarification was required to obviate any counter-argument by an officer sought to be prosecuted that the armed forces were acting contrary to the Supreme Court’s verdict.

Agreeing with the AG, the bench responded that it was also of the prima facie view that the Indian Penal Code (IPC) and the army act or other laws governing navy and air force stood on different footings and therefore, even as adultery was no more an offence under the IPC, it could constitute an ‘ unbecoming conduct’ under the army act.

But the bench, at the same time, added that it was not competent to issue a clarification in this regard since the 2018 judgment was passed by a constitution bench of five judges.

“This will have to be put up before the constitution bench ,” the bench told the AG.