India's Supreme Court on Wednesday agreed to examine the central government's plea seeking exemption for armed forces personnel from being prosecuted for adultery.
The application filed by the Ministry of Defence (MoD) was taken up by a three-judge bench headed by Justice R.F. Nariman.
Appearing for the MoD, the main legal advisor of government Attorney General K.K. Venugopal stated that "the 27 September, 2018 judgment of the court in the Joseph Shine vs. Union of India case, striking down adultery as an offence could come in the way of armed forces personnel being convicted for adulterous acts under the Army Act, Navy Act and Air Force Act".
"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-martialled”, he added.
As per the government's plea, accessed by Sputnik, “The aforesaid judgment passed by this court in 2018 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 with inhospitable weather and terrain”.
“…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 plea further read.
A bench of the top court issued a notice on the central government's plea and sent the matter to Chief Justice of India S.A. Bobde for listing it before a five-judge bench.
In 2018, the apex court took down the law, citing it as discriminatory against women.
The law earlier stated that a married man could be imprisoned if he had sexual relations with a married woman without the consent of her husband. It also prevented a wife from prosecuting her husband or the woman with whom he was having an extramarital relation.
In effect, these clauses vacuumed out the agency of a woman to be a willing participant in sexual relations, a discriminatory practice, the apex court observed.
“It is time to say that the husband is not the master of the wife", then-Chief Justice of India Dipak Misra read out while pronouncing the judgment in 2018.
However, the Supreme Court held that although adultery may not be an offence, it will continue to be a ground for seeking divorce.
The judgment was not welcomed by the armed forces, which wants the acts of homosexuality and adultery to be kept punishable.
Speaking to Sputnik, a senior military official stated that keeping adultery a punishable offence would act as a deterrent, otherwise there would be major discipline issues and it would create a command and control problem.
He further explained that up until now, any complaints of extramarital relationships within the military were handled through two provisions of the Army Act – “conduct unbecoming of an officer” and conduct that disturbed “good order and military discipline”.
Meanwhile, the conduct of the army personnel is governed by the Army Act, while cases of homosexuality and adultery are still considered taboo in the Indian Army.
In the armed forces, the act of “stealing the affections of a brother officer’s wife", which falls under adultery, is a serious offence and is punishable with even death.