Representational Image
Representational Image

New Delhi: The Centre on Wednesday moved the Supreme Court with a plea that its 2018 judgement decriminalizing adultery should not apply to the Armed Forces, where such acts amount to 'unbecoming conduct' and a ground for court martial.

During the hearing, Attorney General K K Venugopal said that under the relevant rules of armed forces, adultery is indeed a ground for court martial and therefore armed forces should be exempted from the purview of the 2018 judgement of the Constitution bench.

It has been contended that jawans and officers are often posted in inhospitable areas and their families are taken care of at base camp by other officers; therefore, laws and rules, penalising adulterous or promiscuous activity, help in maintaining discipline.

Therefore, the AG said clarification is needed in this regard from the top court on the applicability of the verdict to armed forces.

In question is a landmark judgment of a 5-judge Constitution Bench on September 27, 2018, which decriminalised adultery after striking down a British era law, Section 497 of the IPC, terming it as unconstitutional, archaic and manifestly arbitrary, with Justice Rohinton Fali Nariman saying that women can't be treated as "chattel."

Issuing notice on the Centre’s application seeking a clarification, Justice Rohinton Fali Nariman, who was heading a bench comprising Justice Navin Sinha and Justice K.M.Joseph, said that since the clarification has been sought on a decision by a constitution bench, it would be better if it goes before a five-judge bench.

The court has directed the registry to place the matter before Chief Justice Sharad A. Bobde for appropriate orders.

The top court had said in its 2018 judgment that Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution.

"Mere adultery can't be a criminal offence. It is a matter of privacy. Husband is not the master of a wife. Women should be treated with equality along with men," then Chief Justice Dipak Misra had said in his judgment, also speaking for Justice A.M.Khanwilkar.

Section 497 of the IPC says: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."

Adultery was punishable by a maximum five years in jail or fine or both, before the 2018 judgement.

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