2018 verdict decriminalising adultery won’t affect statutory court martial proceedings against armed forces personnel: SC

An interpretation that the 2018 verdict extends to the armed forces would seriously dent the command structure and internal discipline, says govt.

A Constitution Bench on January 31, 2023 clarified that a Supreme Court judgment of 2018 decriminalising adultery will not affect statutory court martial proceedings against armed forces personnel charged for "unbecoming conduct" and acts committed in violation of "good and discipline".

The five-judge Bench led by Justice K.M. Joseph observed in an order that the court, in 2018, had not at all been concerned with the law concerning the armed forces.

Additional Solicitor General Madhavi Divan, for the government, submitted that the 2018 verdict is being repeatedly cited by parties to stall court martial proceedings and subsequent appeals against dismissal before the armed forces tribunal. Ms. Divan said the situation was near chaos. Adultery amounts to an "unbecoming conduct" and a violation of discipline. An interpretation that the 2018 verdict extends to the armed forces would seriously dent the command structure and internal discipline.

She submitted that provisions regarding conduct of armed forces personnel was gender-neutral, unlike Section 497 (adultery) of the Indian Penal Code, which was struck down in 2018 by the apex court.

Ms. Divan submitted that defence personnel of the three wings — the Army, Navy and the Air Force — were a "distinct class". They were governed by special legislation, the Army Act, the Navy Act and the Air Force Act. These special laws impose restrictions on the fundamental rights of the personnel, who function in peculiar situation requiring utmost discipline. The three laws are protected by Article 33 of the Constitution, which allow the government to modify the fundamental rights of the armed forces personnel.

Advocate Kaleeswaram Raj countered that a Supreme Court judgment need not be clarified merely because it was relied on or cited in other proceedings.

The 2018 judgment had concluded that the law, through Section 497 IPC, cannot “command” married couples to remain loyal to each other for the fear of penal punishment. "Two individuals may part if one cheats, but to attach criminality to infidelity is going too far," the judgment had said in 2018.