Adultery Law and the Armed Forces "EMPOWER IAS"

 

 

In news:

• The Supreme Court has admitted a petition filed by the Ministry of Defence (MoD) seeking to exempt armed forces personnel from the ambit of a Constitution Bench judgment of 2018 that decriminalized adultery.

 

What was the 2018 historic Judgment?

• The Supreme Court had struck down Section 497 of the Indian Penal Code, which criminalized adultery.
• It also declared Section 198 of the Criminal Procedure Code as unconstitutional, which deals with the procedure for filing a complaint about the offence of adultery.

 

Important observations of the judgment

• Section 497 was unconstitutional and is violative of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
• The court observed that two individuals may part if one cheats, but to attach criminality to infidelity is going too far. How married couples deal with adultery is absolutely a matter of privacy.
• Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
• Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution.
• It’s time to say that a husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong, ruled the court.
• Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.

 

What about Armed forces?

• The judgment of 2018 created “instability”. It allowed personnel charged with carrying on an adulterous or illicit relationship to take cover under the judgment.
• The bench had then referred the case to the CJI to pass appropriate orders to form a five-judge Bench to clarify the impact of the 2018 judgment on the armed forces.
• This case is now being under the observation of the apex court.

 

Adultery

• The act of adultery is a voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner.

 

Section 497 of the IPC

• It mandates that whoever has sexual intercourse with the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape is guilty of the offence of adultery and shall be punished.
• The law does not punish his wife, since it presumes that only a man can seduce a woman into a sexual act, and that it is the husband who has suffered due to the sexual relationship of his wife, carried out without his consent. At the same time, the wife is not protected from similar behaviour committed by her husband.

 

What is the Adultery Law (Section 497 of IPC) about?

• Section 497 says that any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery or marital infidelity.
• Under this law, adultery is punished with the prison term up to 5 years or with fine or both.

What are the arguments against the adultery law?

• The adulterous woman cannot be punished and can claim innocence under the law which is against the right to equality under Article 14 since she is also the main accused of the crime and it is unfair to the man. Hence section 147 is unconstitutional.
• In the present world, where women hold authority positions in almost all spheres, the idea that women are always the victim, not only undermines the feminism but also unfair to men.
• Adultery law in India is patriarchal and protects only the man’s right to his property, that is, his wife.
• The law treats the wife as the property of her husband since her relationship with other persons depends on the consent of her husband. This can also mean that a woman can have sexual intercourse with another person with the consent of her husband.
• Hence it is against the fundamental right to life and privacy of women under Article 21 of the constitution.
• The woman doesn’t have the right to prosecute her adulterous husband which violates the right to equality under Article 14.
• The law gives the husband the right to blame and punish an outsider for the breakdown of his marriage, instead of moving the court for a mutual divorce or consulting family law attorney or lawyer for the matter.
• The law is quite archaic which was made in 1847 and should not be valid in the present times also, considering the changes in the societal values. Even SC recognizes the legitimacy of live-in relationships in India.
• How could the individuals be held criminally liable by the state for their private decisions? Collective morality should not restrict the constitutional rights of privacy and autonomy. Therefore, adultery should be treated as civil misbehavior rather than criminal behavior.
• In 1971 itself, the 5th law commission recommended changes in the provision to make the law gender neutral and reducing the prison term from 5 to 2 years. But those recommendations were ignored.
• In 2006, the National Commission for Women recommended decriminalization of the adultery law.
• All European countries and many countries in Latin America have decriminalized adultery. In 2015, South Korea decriminalized adultery. Now, only 3 Asian countries still criminalize adultery viz. India, Taiwan, and the Philippines.
• The law has repeatedly failed to prevent the act of adultery.

 

 

Govt. stance over this

• The MoD has sought for an exemption to this decriminalization in the petition.
• It said that 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 petition goes on to say that personnel of 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.
• Adultery amounted to unbecoming conduct and a violation of discipline under these three Acts.
• Unlike Section 497, the provisions of the three Acts did not differentiate between a man and a woman if they were guilty of an offence.

 

Constitutional backing for an exception

• These special laws imposed restrictions on the fundamental rights of the personnel, who function in a peculiar situation requiring utmost discipline.
• The three laws were protected by Article 33 of the Constitution, which allowed the government to modify the fundamental rights of the armed forces personnel.

 

The core idea behind govt. proposition

• One has to remember that the armed forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service.
• The provisions of the Acts should be allowed to continue to govern the personnel as a “distinct class”, irrespective of the 2018 judgment.
• This is because, the discipline necessary for the performance of duty, crucial for national safety, would break down.
• It said the court would not, at the time, have been appraised of the different circumstances under which the armed forces operated.

 

 

Article 33 of the Indian Constitution

• It deals with the power of Parliament to modify the rights conferred by this Part III in their application etc.
• Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counterintelligence; or

(d) persons 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.

 

Cons of Decriminalisation of adultery:

• It will encourage extra-marital affairs leading to conflicts in families. 
• It may lead to more number of divorce cases. 
• It may have a negative impact on children in case of separation between wife and husband. 
• Some experts think that it will destroy the ancient institution of marriage and culture in India as it promotes westernisation.