In 2018, the Supreme Court decriminalised adultery, which was a crime as per Section 497 of the Indian Penal Law.
The Defence Ministry is now seeking an exemption for the Indian Army, Navy and Air Force from the Supreme Court's 2018 verdict.
What was the 2018 verdict, and why does the Defence Ministry want to reinstate it? Let’s discuss.
“497. Adultery.—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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
The 2018 Verdict
A 5 bench panel unanimously struck down the section, stating that the law was ‘archaic and paternalistic’ and ‘infringes upon a woman's autonomy and dignity’, noting that only the husband can file charges for offence under the section.
“Adultery can be grounds for civil issues including dissolution of marriage but it cannot be a criminal offence,” the apex court had said.
The law was considered to be hard on men as it would allow penalisation by vindictive women or their husbands, and also sexist, as it treated women as property of their husbands.
What’s Happening Now?
The Defence Ministry filed an appeal in January 2021, seeking an exemption for the three arms of defence.
Defence personnel are governed under special legislations of the Army Act, the Navy Act and the Air Force Act. Under all three of these acts, adultery is a violation of discipline. According to the appeal, the judgment of 2018 created “instability”. It allowed a personnel charged with carrying on an adulterous or illicit relationship to take cover under the judgment.
Question of Gender-Neutrality
The appeal also argues that the military law is gender neutral, and hence a woman officer can also complain if she suspects her husband of having a relationship with another woman officer. “De hors 497, the Army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship,” it said.
To buttress this point further, the Defence Ministry stated that Constitution has specifically authorized the Parliament for abrogation of fundamental rights of armed forces personnel in terms of Article 33 of the Constitution.
The Counter-Opinion
The National Federation of Indian Women (NFIW) called the Defence Ministry’s argument an “insult” to the Armed Forces personnel and their spouses. “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.
The appeal is based on the argument of honor amongst defence personnel (“stealing the affections of a brother officer’s wife is an offence that is just a notch below the worst offence enlisted personnel can be accused of, cowardice”), the gender-neutrality of the law (which was the main opposition to the original law), and the ‘peculiar conditions’ under which defence officers operate. According to some reports, women officers also want this law to be reinstated.
Do you think adultery should be criminalised, or is it enough for the officer in question to just be relieved of their duties?
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