The Supreme Court on January 31 clarified that although its 2018 judgment decriminalised the act of adultery under the Indian Penal Code, the Armed Forces can take action against its officers for the same under the Armed Forces Act.
A Constitution Bench of the Apex Court headed by Justice K M Joseph, while clarifying the position, said, “This Court was neither called upon nor has it ventured to pronounce on the effect of section 45 & 63 and corresponding provisions of the Armed Forces Act. We only make this position clear & dispose of this application.”
The court made the observations after noting that in its 2018 judgment, the court had no occasion, however, to consider the effect of the provisions of the Armed Forces Act and the acts in question.
“It may by noted that this court did not approve of adultery, it has found that adultery may be a civil wrong and this court has also held that it will be ground for dissolution of marriage,” the bench said.
During the hearing, Additional Solicitor General Madhavi Diwan appearing for the Ministry of Defence drew the court’s attention to the provisions of Army Act, specifically to Sections 45 and 69.
The ASG also pointed out that the settings in which these people of armed forces work constitutes a unique workplace. “It’s a matter which is indispensable. Discipline would be eroded if the high morals of the officers are diluted,” said Diwan.
“The obstacles in the authorities invoking section 45 & 63 is it will also result in a situation wherein said set of armed forces would engender & breed wrong discipline,” she added.
The Ministry of Defence through the ASG also submitted that the forces which are to always act as one and proceed under the existence of sense of brotherhood would breakdown.
“There is a command structure in the armed forces, which is to be maintained which would be impaired and disturbed,” Diwan said, while also adding that the provisions are gender-neutral and “do not suffer from the wise of being not so when it was struck whoever may be man or women”.
She also drew court’s attention to the Sec 63 of the Armed Forces act and pointed out the importance of the word “military discipline” besides good order.
She further went to the extent of the same to be leading to a mutiny. The Ministry of Defence had moved the top court for an exemption to armed forces from the September 27, 2018 judgment striking down adultery, saying it may hinder action against officers who indulge in such actions and can cause ‘instability’ within the services.
In 2018, hearing a plea filed by NRI Joseph Shine, the Supreme Court had struck down Section 497 of the Indian Penal Code, dealing with the offence of adultery, holding it unconstitutional.
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