Adultery has been decriminalised in India in the year 2018. However, adultery still remains a valid ground for divorce. While this is the norm adopted for civilians, the armed forces have taken a strong alternate view and battling it out at the Supreme Court to have some mechanism to act against personnel who indulges in the act.
The Supreme Court interestingly has also taken a different view in this case, vis-a-vis the elaborate statements made in the 2018 judgement, almost giving legal sanctity to married women having sex outside marriage.
Appearing for the Centre, Additional Solicitor General Madhavi Divan informed the top Court that the Army had taken disciplinary action against some personnel for adultery but the Armed Forces Tribunal, citing the 2018 Supreme Court judgment, had quashed the proceedings in many of those cases.
The application was argued by Divan who said that the need to approach the Court arose after the Armed Forces Tribunal (AFT) passed an order relying on the SC judgment on adultery to close proceedings against an officer charged with such an act. As reported by Hindustan Times, Divan added,
This issue is arising in multiple cases before AFT. This can create indiscipline within the ranks.
Army Act punishes acts of adultery by uniformed personnel under Section 45 (unbecoming conduct) and Section 63 (violation of good order and discipline) that leads to initiation of disciplinary proceeding ending up even in dismissal.
The IPC offence of adultery has patriarchal connotations but in the armed forces, this offence is gender neutral. We can even take action against female officers indulging in adultery.
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A five-judge Constitutional bench headed by Justice K M Joseph, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar was hearing an plea by the Union government urging the court to clarify whether an Army personnel can be proceeded under the Army Act for acts of adultery, notwithstanding the 2018 judgment, that decriminalised the act of adultery.
The Supreme Court in the last week of September observed, that adultery can break families and cause pain. The apex court went on to add that in the Armed forces – where discipline is of paramount importance – there should be some mechanism to act against personnel for such conduct. Justice K M Joseph remarked,
In armed forces where discipline is of paramount importance, this is a conduct that can shake up the life of officer and the armed forced must be able to take some kind of action.
Questioning Divan on the matter, Justice Joseph then asked,
Is there anything in the judgment which precludes you from taking action for misconduct?
As Divan responded that she will go through the judgment in detail, Justice Joseph said,
Our view is that if there is nothing in the judgment precluding you, you will be advised to withdraw this application. You can challenge the individual orders of the AFT instead.
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The bench also added,
Court has taken a value judgment on adultery with regard to fundamental rights. But if an employer seeks to take action for misconduct, what prevents him. Is there anything in our judgment that stand in your way to treat such conduct as misconduct?
The hearing was adjourned to December 6.
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Justice Joseph also recalled an incident from the High Court where he said the mother had committed adultery and the children refused to speak to her, despite best efforts of the judges. Justice Joseph also said,
That is the sort of pain, anger and hatred this can create.
The judges concluded,
We have held so many sessions as judges of high courts to counsel families. We are telling you, don’t treat it lightly. The family relationships get completely broken. Even children refuse to talk to such a parent. That is the kind of rancour and hatred that is in their minds.
Armed Forces Can Take Disciplinary Action Against Personnel Who Indulge In Adultery: Supreme Court Of India
Union of India Counsel to SC: "IPC may be patriarchal but in armed forces, we can even take action against female officers indulging in adultery"https://t.co/THbLoQY75B
— Voice For Men India (@voiceformenind) October 8, 2022
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