Armed Forces Personnel Liable To Face Disciplinary Action For Adultery Despite Striking Down Of Section 497 IPC : Supreme Court

Sohini Chowdhury

31 Jan 2023 11:04 AM GMT

  • Armed Forces Personnel Liable To Face Disciplinary Action For Adultery Despite Striking Down Of Section 497 IPC : Supreme Court

    A Constitution Bench of the Supreme Court on Tuesday clarified that its 2018 judgment striking down Section 497 of the Indian Penal Code(which criminalised adultery) will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.The bench observed in the order that the 2018 judgment in the case Joseph Shine vs Union of India was not at...

    A Constitution Bench of the Supreme Court on Tuesday clarified that its 2018 judgment striking down Section 497 of the Indian Penal Code(which criminalised adultery) will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.

    The bench observed in the order that the 2018 judgment in the case Joseph Shine vs Union of India was not at all concerned with the provisions of the armed forced Acts. The bench further noted that as per Article 33 of the Constitution, the legislations governing armed forces can provide exemptions from the applicability of fundamental rights.

    A 5-judge bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar passed the order in an application filed by the Union Government. In 2019, a 3-judge bench had referred the application to a Constitution Bench, as the Joseph Shine judgment was delivered by a 5-judge bench.

    The order dictated by the Court today is as follows :

    "The judgment of this court was concerned only with validity of S. 497 IPC and S. 198(2) CrPC...In this case, this Court had no occasion to consider the effect of the provisions of the Armed Forces Acts. As we notice, it is not as if this court approved of adultery. This Court had found adultery may be a modern problem. This Court also held that will continue to be a ground for dissolution of marriage...In view of the fact that the scheme of the acts in the context of Article 33 did not fall for consideration before this court, we must observe and clarify that the judgement of this court was not at all concerned with the effect and provisions of the Armed Forced acts. This court was neither called upon nor has it ventured to pronounce on effect of S. 45 and S. 63 of the Army Act as also the corresponding provisions of the other Acts(Navy Act, Air Force Act)".

    Additional Solicitor General Madhavi Divan, appearing for the Centre, had told the bench that the application was filed in view of the Armed Forces Tribunal quashing certain disciplinary proceedings initiated against personnel for inappropriate sexual conduct by citing the Joseph Shine judgment. The ASG pointed out that the Joseph Shine judgment was premised on the patriarchal connotations of Section 497 IPC; however, the actions taken in Army are gender neutral and female officers are also liable to disciplinary action.

    Divan said that action against adultery is necessary to ensure that the officers who are serving in far flung areas away from their families do not feel insecure or dispirited.

    Advocate Kaleeswaram Raj, who appeared for the petitioner in the Joseph Shine case, submitted that the Union's clarification application is not maintainable and that there is no observation in the Joseph Shine case regarding Army Officers. He submitted that a general clarificatory direction cannot be given and individual cases are to be examined on a case-to-case basis.

    Case details

    Joseph Shine vs Union of India | 2023 LiveLaw (SC) 117 | MA 2204 OF 2020 | 31 Jan 2023 | Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar

    For Petitioner(s) Mr. Sarvesh Singh, AOR Mrs. Madhavi Divan, A.S.G. Mr. Sanjay Jain, A.S.G. Mr. R Balasubramaniam, Sr. Adv. Mr. Sachin Sharma, Adv. Mr. Mohd Akhil, Adv. Mr. Balendu Shekhar, Adv. Mr. Kanu Agarwal, Adv. Mrs. Deepabali Dutta, Adv. Mr. Mayank Pandey, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Ms. Nidhi Khanna, Adv. Ms. Aishwarya Nabh, Adv. Mr. Aanorita Deb, Adv. Mr. Shubham Saigal, Adv. Mr. Aishani Narain, Adv. Mr. Kaleeswaram Raj, Adv. Mr. Nishe Rajen Shonker, AOR Ms. Thulasi K Raj, Adv.

    For Respondent(s) Mr. K. Parameshwar, AOR Ms. Arti Gupta, Adv. Ms. Kanti, Adv. Ms. Anannya Ghosh, AOR Mr. Dushyant Manocha, Adv. Ms. Mrinalini Mishra, Adv. Ms. Chitra Vats, Adv. Ms. Doel Bose, Adv.

    Headnotes

    Army Act, 1950 ; Sections 45 and 63 - Miscellanious application filed by UoI seeking clarification of Joseph Shine v. Union of India (2019) 3 SCC 39 ) - This Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts. We only make this position clear.

    Adultery - Joseph Shine v. Union of India (2019) 3 SCC 39 - It is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong. (Para 23)-

    Click here to Read/Download Order

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