The Supreme Court on Wednesday issued notices on Centre’s plea to exempt the Armed Forces from the purview of its 2018 judgement of decriminalising adultery, reported Live Law. A bench headed by Justice Rohinton Fali Nariman agreed to examine the plea, but requested the Chief Justice of India SA Bobde to list the matter before a five-judge bench, as the petition sought clarification of a Constitution bench judgement.
The notice was also issued to Joseph Shine and others, on whose Public Interest Litigation, the Supreme Court had decriminalised adultery in 2018.
In its plea, the Centre said that decriminalising adultery may cause “instability” within armed forces as defence personnel often stay separated from their families for a long period, reported Live Law.
“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,” the application said.
On being asked by Justice Nariman that why a clarification was required, Attorney General KK Venugopal, representing the Centre, said that the 2018 judgement does not take into account the Armed Forces Act, which does not specify “adultery”, but under which “unbecoming conduct” may lead to court martial.
On September 27, 2018, the Supreme Court had unanimously struck down the provision of the Indian Penal Code that criminalised adultery. Section 497 of the IPC made it a crime for a man to have sexual intercourse with the wife of another, without the other man’s consent. Any man who did so was deemed to be violating the right of the husband. A woman could not be the perpetrator or the victim of the crime of adultery as the section ascribed sexual agency only to men.
The Constitutional Bench of then Chief Justice Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra held that Section 497 violated the right to equality and destroyed the dignity of women. The bench observed that parameters of Fundamental Rights should include the rights of women and that individual dignity is important in a sanctified society. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they are falsely linked to a man on mere suspicion, since they could not be made party to the case under Section 497 and had no locus standi.