“Keep Adultery a Crime in Armed Forces”: Centre’s plea

Author : Kannu Priya

On 13 January 2021 Supreme Court agreed to examine the Central government’s request to keep adultery a crime in the armed forces. The Centre in it’s plea said the 2018 verdict where in September 2018 the Supreme Court unanimously struck down Section 497 of Indian Penal Code, which defines that whoever has sexual intercourse with wife of another man without the consent of that man such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery and shall be punished with imprisonment or fine or with both should not be applied to armed forces. Centre wants adultery law to be criminalized for armed forces.

In September 2018 Court decriminalized adultery as a result of petition filed by Joseph Shine who termed this law as “unjust, illegal and violative of citizens fundamental rights”.  Five- Judge bench of the Supreme Court declared the 158 year old law as unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 ( Right to equality). The Court also declared Section 198(1) and 198(2) of the Code of Criminal Procedure unconstitutional which allows a husband to bring charges against the man with whom his wife committed adultery.[1]This was also the reason for decriminalization of Section 497 as it is anti- women, it violated a woman’s dignity by preventing her from exercising her freedom and making choices for herself.

The Chief Justice of India Deepak Mishra who pronounced the judgement in concurrence with Justice AM Khanwilkar said adultery could be a ground for civil issues including dissolution of Marriage it could not be criminal offence. Now after two years of this decision Center filed a plea in Supreme Court to criminalized adultery in armed forces. A bench comprising of Justice RF Nariman, Navin Sinha and KM Joseph also referred the matter to Chief Justice SA Bobde for setting up of a Five Judge Constitutional bench which can classify the position.[2] Centre in it’s affidavit had said that diluting adultery law will impact the sanctity of marriages and will be determined to the matrimonial bond.

Armed forces have different laws then Civil laws, army is regulated by separate system of laws because of the environment and discipline of the armed forces. Army can not be run as civilians after filing of plea by Centre various question are rising regarding this it is said that Five benches decision should not be questioned. But if adultery will not be criminalized for armed forces then it will have a bad impact on military function, chain of commercial and on juniors. If it will be taken as casual then this will continue to happen and will affect discipline and pride of army. Supreme Court should criminalized adultery for armed forces, In countries like US they don’t have adultery as offence in civilians but in US military it is criminalized offence. Section 134 of Uniform Code of Military Justice says adultery is an offence.[3] Same is the case with British army, so Supreme Court can apply adultery as an offence for armed forces to maintain proper functioning of military.

With this there is also need to modify adultery law as it only allows man to take action and women can not file case against her husband if he does adultery. Because of this it creates a image of anti women law so with modification of this law, adultery law can be applied to armed forces.

And due to different environment in civilians and armed forces there should be not any issue related to treating armed forces different then civilians because armed forces have already many laws different from civilians so if armed forces need adultery law to maintain proper functioning of military then it can be given to them.  

[1] Indu Malhotra, Joseph Shine v. Union of India, Indian Kanoon (September 27,2018) https://indiankanoon.org/doc/42184625/ Indu Malhotra

[2] Times of India (January 13,2021) https://m.timesofindia.com/india/sc-to-hear-centres-plea-to-keep-adultery-a-crime-in-armed-forces/amp_articleshow/80246872.cms/ Times of India

[3] Rod Powers, Uniform Code of Military Justice (UCMJ), Articles Governing Military Law, Balance careers (December 12,2017) https://www.thebalancecareers.com/uniform-code-of-military-justice-ucmj-4057220#:~:text=Article%20134%3A%20General%20Article,be%20brought%20to%20court%2Dmartial./ Rod Powers