Adultery and court martial proceedings

Constitution Bench of the Supreme Court has observed that Joseph Sine Judgment (2018) which declared provisions related to adultery as unconstitutional will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct. Based on this observation, the Union of India has sought clarifications from the Court on the application of special legislation for armed forces made under Article 33 of the Indian Constitution which governs their conduct of service.

Article 33 – fundamental rights

Article 33 – Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. – Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,— the members of the Armed Forces; or the members of the Forces charged with the maintenance of public order; or persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Provisions on Adultery

Section 497 of Indian Penal Code defines 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.

As per Section 198 (2) of Code of Criminal Procedure, only the aggrieved husband could file the case of Adultery against another man who had sexual intercourse with his wife without his consent.

Recommendations of Committees on adultery

42^nd Law Commission Report and Justice Malimath Committee had suggested that offence of adultery be amended to include wife liable for the offence of adultery.
This will not only remove the arbitrariness but
would also make the law gender neutral

as same punishment shall be given to both the man and woman for the offence of adultery.

However, Madhav Menon Committee and National Commission of Women had suggested for the removal of adultery from criminal offence and make it a social wrong.

constitution bench judgment – Joseph Shine v Union of India – 2018

The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the Criminal Procedure Code, 1973 and also pleaded to make the provision gender neutral.
The Supreme Court struck down Section 497 of the IPC on the grounds that it violated Articles 14, 15 and 21 of the Constitution.
The Court held that Section 497 pertaining to Adultery was archaic, arbitrary and paternalistic and infringed upon a woman’s autonomy, dignity, and privacy.
The Court held that adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.
Section 198(2) of the Cr.PC which allowed only a husband to bring a prosecution under Section 497 of the IPC was also struck down as unconstitutional.
This decision overruled the Court’s previous decisions in Yusuf Abdul Aziz vs. State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India ((1985) Supp SCC 137) and Vishnu Revathi vs. Union of India ((1988) 2 SCC 72) where the constitutional validity of Section 497 was upheld.

questions posed before the supreme court on regulating the conduct and behaviour of armed force personnels

Department of Military Affairs under Ministry of Defence has sought clarifications from the Supreme Court on the following issues:
Should persons subject to Army Laws made under Article 33 being a distinct class of persons be subjected to provisions of adultery under Section 497 of IPC?
Can an exception in regard to application of Section 497 of the IPC for persons subject to Army Act be made?
Whether the adulterous acts be allowed to be governed by the provisions of Army Act, Navy Act or Air Force Act irrespective of the 2018 Joseph Shine Judgment by treating it as an abrogation of Fundamental Rights under Article 33.
In view of Article 33 of the Constitution, whether the 2018 judgment would prevent the Armed Forces from proceeding against a person subject to the Army Act, who is guilty of what would in effect be an adulterous act.
Whether an adulterous relationship by a male or a female in the army, navy or airforce be initiated under special laws (made under Article 33) considering the requirements of discipline and proper discharge of their duty?
Armed Forced do not differentiate between man and woman – Government argued that unlike Section 497 of IPC, the Armed Forces do not make a difference between a man and a woman, who is subject to the Army Act, if they are guilty of an offence.
Reasons to restrict Fundamental Rights under Article 33 – There was a reason why the framers of the Constitution had authorised Parliament to restrict or abrogate certain FR in their application to armed forces to ensure proper discharge of duties and maintenance of discipline.

Supreme Court’s Observation

Joseph Shrine Not Concerned with Article 33 – On the issue of applicability of Joseph Shine case o Armed Forces, Supreme Court observed that Joseph Sine was not concerned with the provisions of Armed Forces Acts legislated under Article 33 of the Indian Constitution.
Exemptions can be provided under Article 33 – 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.
The Constitution Bench has reserved its judgment dated 31-01-2023 on the issue pertaining to an application filed by the Department of Military Affairs seeking clarification of the Constitution Bench judgment dated 27-09-2018 Joseph Shine v. Union of India.

Disciplinary Proceedings Must Have Direct Nexus with Performance of Duties

In various cases post Joseph Shine Judgment in 2018, the constitutional courts have tried to differentiate personal and public activities including cases of promiscuity or adultery.

Mahesh Chand Sharma versus State of Rajasthan and Others (2019) – Rajasthan High Court set aside the departmental proceedings against the petitioner serving as an inspector in Rajasthan Police for illicit relation with one woman constable and had also ‘begotten a child from illicit relations’.
Moral Policing Not Allowed by Employer – No employer can be allowed to do moral policing on its employees which goes beyond the domain of his public life.
Personal choices and selections (to have sexual intercourse) cannot be a subject matter of departmental proceedings under the Service Conduct Rules.
Maheshbhai Bhurjibhai Damor versus State of Gujarat -Gujarat High Court quashed and set aside the dismissal order of an armed police constable arising from allegations that he had developed illicit relations with a widow which amounted to misconduct.
Allegations Must have Direct Nexus with Duties Performed – The Court held that in order to prove misconduct, allegations must have some nexus, direct or indirect, with the duties to be performed by the government servant.
Affair not misconduct under Conduct Rules – alleged act was a private affair and not a result of any coercive pressure. Hence, the act of the petitioner at the most could be considered as an immoral act and cannot be considered as misconduct under the Service Rules.

Way Forward

As of now the Supreme Court has reserved the judgment on the application of adultery provisions as misconduct under specific legislations. However, considering the High Courts judgments post Joseph Shine judgment, it has maintained strict separation between public and private affairs and misconduct proceedings can only be initiated if the alleged act has a direct nexus with the duties to be performed by the public servant.