Central Idea
- The Supreme Court of India decriminalized adultery in 2018, but the Union of India sought clarification from the Court concerning its implementation in the armed forces. The court’s observations suggest that the armed forces may still discipline for adulterous acts under their special legislations. However, recent court cases show that an act must have some nexus with the discharge of duties to be considered misconduct, and private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution.
What is mean by Adultery?
- Adultery is a term used to describe a consensual sexual relationship between a married person and someone who is not their spouse.
- It is generally considered to be a breach of marital fidelity and can have legal, social, and religious consequences.
- In some societies and cultures, adultery is considered a crime or a sin, while in others it may not be explicitly prohibited but is still frowned upon or considered morally wrong.
Adultery In the Indian context
- Joseph Shine v. Union of India: Adultery was a criminal offense under Section 497 of the Indian Penal Code (IPC) until September 2018, when the Supreme Court of India decriminalized it in a landmark judgment in Joseph Shine v. Union of India.
- Law applied to men only: Before the judgment, adultery was punishable by up to five years of imprisonment or a fine or both, and the law only applied to men who had sexual relations with someone’s wife without the husband’s consent.
- Law did not consider women as an offender: The law did not consider a woman who had an affair with a married man as an offender or the husband as a victim.
What is Article 33?
- Fundamental rights of armed forces personnel can be curtailed by law for discipline: It empowers the Parliament to restrict or modify the fundamental rights of armed forces personnel, including members of the Army, Navy, and Air Force, to ensure the proper discharge of their duties and the maintenance of discipline among them. This means that the fundamental rights of armed forces personnel can be curtailed or modified by law to the extent that it does not hinder their duties or impact discipline.
- Laws may be different from the general laws: The article gives special powers to Parliament to make laws that may not necessarily be in line with the fundamental rights guaranteed to Indian citizens under the Constitution. These laws may be different from the general laws applicable to Indian citizens, and their enforcement may be specific to the armed forces personnel.
- Application: The article applies not only to the armed forces personnel but also to members of the police force and intelligence agencies involved in maintaining public order. However, the restrictions imposed on these personnel should be in line with the principles of the Constitution and not infringe on their right to privacy or other fundamental rights.
Decriminalization of Adultery
- Civil wrong: In 2018, The Joseph Shine judgment removed the criminalization of adultery and declared it a civil wrong that can be a ground for divorce.
- State should not interfere in matters of personal relationship: The judgment recognized that the right to choose one’s partner and engage in consensual sexual relations is a fundamental right and that the state should not interfere in matters of personal relationships between consenting adults.
- Violation of fundamental Rights: The provisions were found to be violative of Articles 14, 15, and 21 of the Constitution of India.
Recent Court Cases
- Rajasthan High Court: In Mahesh Chand Sharma versus State of Rajasthan and Others (2019).
- The court set aside departmental proceedings against a police inspector who allegedly had illicit relations with a woman constable and had a child from illicit relations.
- The court held that no employer could do moral policing on its employees beyond the domain of their public life.
- Gujarat High Court: In Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 other(s) (2022).
- The 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.
- The court held that allegations of misconduct must have some nexus with the duties to be performed by the government servant.
- Private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution.
Government’s argument
- Sought clarification: The Union of India sought clarification from the Court on implementing the decriminalization of adultery in the armed forces.
- Special legislations must govern: The Union of India argued that special legislations, such as the Army Act, Air Force Act, and Navy Act, should govern promiscuous or adulterous acts among members of the armed forces.
Conclusion
- The recent court cases show that the decriminalization of adultery does not inhibit the parameters of departmental proceedings or enlarge them. Private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution unless it has some nexus with their duties. The sacrosanct right to privacy available to the members of the armed forces cannot be taken away unless it interferes with the discharge of duties.
Mains Question
Q. What is mean by Adultery? The Supreme Court of India decriminalized adultery in 2018. Discuss the reasons for doing so?
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