- The law making adultery a crime was junked by the top court in 2018
- It was seen as reiterating stereotype wherein women lacked sexual agency
- The Centre argued back then that the law kept the sanctity of marriage
The Supreme Court today agreed to examine the Central government's request to keep adultery a crime in the armed forces. A bench of the top court today requested the Chief Justice of India to set up a five-judge constitution bench to issue clarification on the Centre's plea.
In September 2018, a constitution bench of the Supreme Court junked the 158-year law that made adultery a crime in India. Under section 497 of the IPC, a man could not be punished for an affair but not the woman, treating her as her husband's property. The law espoused the sexual stereotypes that ascribe sexual agency to men, and sexual passivity to women, and characterises men as the "seducers" and liable, criminally, while women are "seduced", hence the victims.
A petition had back then said that by exonerating wives of adultery if done with the consent of their husbands, it discriminates against women, and amounts to "institutionalised discrimination".
"Adultery cannot and should not be a crime," then Chief Justice Dipak Misra had said while delivering the verdict in 2018.
The Centre, in its plea submitted today, said the 2018 verdict should not apply to armed forces where personnel can be cashiered from service on the grounds of unbecoming conduct for committing adultery with a colleague's wife.
"The Supreme Court verdict (2018) on adultery may cause instability within the armed forces as defence personnel are expected to function in peculiar conditions and have to stay separated from their families for long duration," the Centre's plea today said, fearing for discipline in the ranks.
"Discipline is the bedrock of the work culture in defence services and an essential ingredient for combat operations," it said.
Apparently, while delivering the 2018 verdict, the Supreme Court did not take into account or may not have been apprised of the peculiar service conditions of the defence personnel. Besides, it may also not have considered the fact that the framers of the Constitution had specifically authorised Parliament to abrogate their fundamental rights in terms of Article 33.
Based on the Centre's plea, the Supreme Court today issued a notice to the petitioner on whose plea adultery was decriminalised in 2018.
In the arguments leading up to the 2018 verdict, too, the Centre had defended section 497, saying the sanctity of marriage must be protected. The top court had then questioned how the law preserved the sanctity of marriage when the extra-marital affair didn't invite punishment if the woman's husband stood by her.