The Supreme Court on Wednesday admitted an application filed by the Defence Ministry seeking to exempt the armed forces from the purview of its September 2018 judgment decriminalizing the offense of adultery.
Under the rules of the armed forces adultery is a ground for court-martial for unbecoming conduct. Admitting the application, a bench headed by Justice Rohinton Nariman issued notice to Joseph Shine, petitioner in the PIL in which adultery was decriminalized.
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| Make adultery punishable for armed forces as decriminalization raising fears of untoward activity: Def Min |
Defence Ministry said it wants to continue to try armed personnel for adultery under the provisions of the Army Act for “unbecoming conduct” and not under provision prohibited by the Supreme Court despite the apex court decriminalizing it. Defence Ministry believes that these are uniformed professions where moral turpitude has no place.
CONTROVERSIAL GROUND
But more than Defence Ministry’s application, what is making news is one of the grounds cited on why it wants exemption from the decriminalization of adultery.
The Defence Ministry application says: “Because of the aforesaid judgment (SC judgment decriminalizing adultery), 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 usage of the words- “family indulging in untoward activity” has created a controversy. Annie Raja, General Secretary of National Federation of Indian Women has issued a statement demanding unconditional apology from the Defence Minister “for the way the defense ministry insulted armed forces and the wives and spouses who are away from each other”.
“The National Federation of Indian Women has strongly condemned the way The Department of Military Affairs, Ministry of Defence, has filed an application for clarification regarding the applicability of a Supreme Court judgment of 27.09.2018 on the issue of adultery. The prayer is to clarify that the judgment is not applicable for those in the Armed Forces”, says the statement.
“PERSONAL INTEGRITY OF OFFICERS, SPOUSES QUESTIONED”
“Through this statement, the Ministry is questioning the personal integrity of those who are part of the Armed forces and their spouses. By raising the argument of “concern of the personnel” about their “family indulging in untoward activity”, the Ministry is blatantly questioning the personal integrity of women in particular. These aspersions reflect the sickening, feudal, Manuwadi attitude of decision-makers in the Ministry. They are stating that they have no faith in their own personnel and also that they are worried about the private life of the spouses of their personnel! NSFW hopes the Supreme Court will take note of the insensitive attitude of the Ministry. NSFW demands that the highly insensitive arguments be withdrawn forthwith. NSFW also demands an unconditional apology from the Defence Minister”, said the statement
This is what the controversial para 3 of the Defence Ministry’s application says:
“It is submitted that the aforesaid judgment (September 2018 judgment decriminalizing adultery) passed by this Hon'ble Court may cause instability within the Applicants Services, as Defence Personnel are expected to function in peculiar conditions, during the course of which many a time they have to stay separated from their families for long durations, when they are posted on borders or other far-flung areas or in areas having inhospitable weather and terrain. The support system to families is provided by the creation of 'Field Area Family Accommodation', where families are cared for by local formations and units while their spouses are away serving in forwarding locations, very often in combat situations. To ensure that all personnel performs their duties without unnecessary-concern for their families, there is a system where frequent visits to families living away from their spouses by Officers/JCOs, is a regular feature, because of the aforesaid judgment, 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.”
Appearing for Ministry of Defence, Attorney General KK Venugopal, told the court that the September 27, 2018 judgment of the court in the Joseph Shine v Union of India case, striking down adultery as an offense could come in the way of armed forces personnel being convicted for adulterous acts under the Army Act, Navy Act, and Air Force Act.
Venugopal said, “The Army, Navy, and Air Force have provisions under which those caught in adulterous acts are liable to be punished for unbecoming conduct by which they can be court-martialed.”
Decriminalizing adultery, SC had in September 2018 ruled for equality with a Constitution bench unanimously striking down as unconstitutional the adultery law that only punished a married man for having consensual relations while exempting the woman from punishment.
The court found section 497 of the Indian Penal Code, 1860, which governs adultery to be “arbitrary and violative of Article 14 (right to equality) of the Constitution". The provision imposes culpability on the person who has sexual intercourse with a woman who is, and whom he knows or has reason to believe to be, the wife of another man, without the consent or connivance of the husband.
Till the decriminalization, only married men are punished under Section 497 of the Indian Penal Code and face jail for up to five years while the woman in the affair goes free.
A husband can only divorce a wife on grounds of adultery. There is no penal provision against her.
SC remarked that each partner to a marriage is equally responsible to keep the sanctity of the union intact and the husband alone cannot be punished for the violation.
If a married woman has sexual intercourse with a married man other than her husband, why the man alone should be punished when the woman is an equal partner to the crime, the SC had wondered
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