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The Defence Ministry has moved Supreme Court seeking exemption from applicability to the Armed Forces, the decriminalisation of Adultery laws.

Highlighting that the exemption is imperative, the Centre has stated 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 Top Court had decriminalised adultery by it's 2018 verdict [in Joseph Shine Vs. Union of India], holding that the19th century provision of the Indian Penal Code treated a wife as chattel of her husband. The Court had further observed that a man committing adultery with another man's wife was punishable under the law while the wife, who as per law had no distinct legal personality, could not be punished.

In this perspective, it is averred that since the Indian Armed Forces do not discriminate between male and female personnel for acts of adultery viz. the Army Act unlike the (erstwhile section 497 of the IPC), the exemption should apply for the Armed forces.

"The judgment 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 duration" 
- Centre tells SC

The Centre contends 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.

Placing reliance on constitutional safeguards, the Centre states that though the Army Act and the Army Rules specify only few restrictions, however, this Hon'ble Court has, in a catena of cases held that every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33, as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the constitution and the Army Act.

It is stated that one must remember that the Armed Forces exist in an environment wholly different and distinct from civilians and Honour is a sine qua non of the service.

"Courage, and devotion to duty, even at the risk of one's lives, is part of the unwritten contract governing the members of the Armed Forces," it adds.

Hence, the Centre states that that the two provisions covered by Army Act, Section 63, namely 'good order and discipline', and Section 45, namely 'unbecoming conduct' and corresponding provisions of Navy Act and Air Force Act would cover a wide variety of conduct which a member of the forces will be subject to. Thus, 'promiscuous or adulterous act' by persons subject to the Army Act, Navy Act and Air Force Act would still be offences for which either criminal or disciplinary action could be initiated under Army Act Section 63 or Section 45 and under corresponding provisions of Navy Act and Air Force Act respectively.

The Centre has thus prayed that persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54 (2) or 74 of the Navy Act. 

Statute: Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950 Article 33, Constitution of India, Section 497, Indian Penal Code.