The Supreme Court on Thursday said the military should have a mechanism to act against officers found to have engaged in adultery.
The Suprem Court highlighted adultery would adultery would inflict pain and could shake the life the officers. Further saying that "discipline is paramount" for the military, the apex court said adultery in the military cannot be treated lightly.
The SC made these remarks while hearing a plea seeking clarification of the apex court's 2018 order in which it declared provisions penalising adultery as unconstitutional. The apex court on Thursday said the 2018 verdict —called the Joseph Shine verdict— cannot be referred to halt disciplinary proceedings against those guilty of adultery in the military.
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The Supreme Court said, "In uniformed services, discipline is of paramount importance. This is conduct that can shake up the life of officers. Everybody is ultimately dependent on the family as a unit of society. The integrity of society is based on the faithfulness of one spouse to another.
"This (adultery) is going to shake the discipline in the armed forces. Armed forces must have some kind of assurance that they will take action. How can you cite Joseph Shine (judgement) and say it cannot be."
In 2017, a non-resident Indian named Joseph Shine filed a petition in the Suprenme Court against Section 497 of the Indian Penal Code (IPC) which criminalised adultery. In 2018, the Supreme Court delivered its verdict decriminalising adultery.
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The SC on Thursday said, "Adultery creates pain in a family. We have held so many sessions as judges in the high courts and seen so families are torn. We are telling you that do not treat this in a lighter manner. There was one incident where the mother, who committed adultery filed a habeas corpus plea seeking custody of her children. They (children) refused to talk to the mother. That's the kind of hate that happens."
The SC bench was headed by Justice K M Joseph and comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C T Ravikumar. Additional Solicitor General Madhavi Divan, appearing for the Centre, had submitted a plea seeking clarification of the 2018 judgement has been filed by her.
The Ministry of Defence (MoD) had moved the apex court saying that the September 27, 2018 judgement striking down adultery as an offence could come in the way of armed forces personnel being convicted for adulterous acts. Divan told the bench that disciplinary actions were taken against certain army personnel for adultery, however, the Armed Forces Tribunal (AFT) quashed such proceedings in many cases, citing the Joseph Shine judgement.
"We are seeking that striking down of section 497 will not come in the way of armed forces taking action against officers for unbecoming conduct," said Divan, adding that disciplinary actions taken in the Army are gender neutral and even if a female officer is found to be indulging in adulterous activities, she will also face action for misconduct.
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The Supreme Court said there was nothing in the 2018 judgement which precludes the armed forces and it can challenge the individual orders of the AFT.
Divan sought time to go through the 2018 judgement in detail. The top court then posted the matter for hearing on December 6.
(With PTI inputs)
