SC issues notice on decriminalization of adultery on members of Armed Forces

Tanvi Sinha

The Supreme Court of India issued a notice to the Centre seeking clarification on the issue of the Adultery committed by men inside the Armed Forces with respect to the 2018 judgement- Joseph Shine v. UOI that decriminalized adultery.

Centre, represented by Attorney General KK Venugopal had been seeking a response from the Top Court on this as they said that this collided with a provision in the Armed Forces Act that stated that anyone who performs unbecoming conduct is subject to a court-martial.

The matter was taken to court to a bench headed by Justice Rohinton Nariman that stated that the issue needs to be taken to the CJI as the matter was concerned with a constitution-based judgement.

This matter comes as the 2018 judgement of Joseph Shine v. UOI, also headed by Justice Nariman, effectively decriminalized adultery and made the matter of adultery an entirely civil matter.

The logic behind the judgement then was concerning two important points- privacy in a marriage and the fact that the wording of the provision of adultery in IPC only made for a man to be able to charge a man with the crime.

There was in fact no provision of the woman in the situation being able to place criminal charges on a man who commits adultery to her or on the woman with who he commits adultery with.

Even worse, in cases where the husband has extra-marital relationships with an unmarried woman it would have been absolutely impossible to press for criminal charges.

The only criminal charge possible was to another man for coveting the husband’s wife hence treating her as a creature devoid of autonomy in the case or something like chattel.

However, the Centre argues a different angle in this case.

They speak of how the Armed Forces remain away from their families for a long period of time and this in itself would cause instability in their marriages and in situations where they stay away from their family for these long periods would result in apprehensions of their families behaving untowardly.

Additionally, the Centre speaks of the restriction on fundamental rights of the army personnel under Article 33 of the Constitution.

Finally, the Centre raises two important questions of whether the army and solely be continued to be subject to the rigors of the section concerning adultery as according to the fact their fundamental rights are limited, or if they continue following the Armed Forces Act irrespective of the 2018 judgement.