Adultery as ‘misconduct’


    In News

    • The Union of India sought clarification from the Supreme Court on applicability of its judgement on Adultery on armed forces.


    • The Supreme Court of India decriminalized adultery more than four years ago in a landmark judgment, Joseph Shine versus Union of India in 2018.
    • Section 497 of the Indian Penal Code (on adultery) along with Section 198 of the Criminal Procedure Code were held to be unconstitutional on the premise that these provisions were violative of Articles 14, 15 and 21 of the Constitution of India.
    • In this regard, the Union government has sought clarification from the Court saying that any promiscuous or adulterous acts should be allowed to be governed by the relevant sections of the Army Act, the Air Force Act and the Navy Act being special legislations by the virtue of Article 33 of the Constitution.
    • The Court has recently held that in Joseph Shine it ‘was not at all concerned with the effect and operation of the relevant provisions’ and ‘it is not as if this Court approved of adultery’

    What is Adultery in India?

    • Adultery is a voluntary sexual relationship between a married person and someone who is not their spouse.
    • In India, prior to the Supreme Court’s judgment in 2018, adultery was considered a criminal offence under Section 497 of the Indian Penal Code.
    • This law made it a crime for a man to have sexual intercourse with the wife of another man without that man’s consent.
    • The law treated women as the property of their husbands and did not provide for any punishment for women who committed adultery.
    • Currently, in India, adultery is not considered a crime, but it can be a ground for divorce under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.
    • In addition, adultery can be considered as ‘misconduct’ under the relevant Service Conduct Rules for government servants, including those in the armed forces.
    • However, any disciplinary action taken by the employer must have a direct or indirect nexus with the employee’s duties, and cannot be arbitrary or infringe on their right to privacy.

    Important judgements on Adultery

    • The Indian Penal Code, 1860: Section 497 of the IPC dealt with adultery until it was struck down by the Supreme Court in 2018.
    • Yusuf Aziz v. State of Bombay (1954): The case upheld the constitutional validity of Section 497 of the IPC, stating that the law did not discriminate against men and that the adultery law protected the sanctity of marriage.
    • Sowmithri Vishnu v. Union of India (1985): The Supreme Court held that Section 497 of the IPC was violative of Articles 14 and 15 of the Constitution of India, as it only criminalized sexual intercourse with a married woman without the consent of her husband and did not punish women for adultery.
    • V. Revathi v. Union of India (1988): In this case, the Supreme Court held that Section 497 of the IPC was discriminatory against women and violated the Constitution of India and observed that adultery is a private matter between adults and the state has no business to interfere.
    • Joseph Shine v. Union of India (2018): The Supreme Court in this case declared Section 497 of the IPC unconstitutional and struck it down holding that the provision was archaic and violated the fundamental right to equality and personal liberty enshrined in the Constitution.

    Challenges of adultery

    • With the decriminalization of adultery in India, employers are limited in their ability to discipline employees for their private affairs.
    • The courts have provided some guidance on this issue, stating that misconduct must have some nexus with the employee’s duties in order to be subject to disciplinary action.
    • There is ambiguity regarding whether the armed forces may still take disciplinary action for adulterous acts under their special legislations.
    • There are cases in which allegations of adultery have directly or indirectly been used as a tool to hamper the employee’s ability to discharge their duties or maintain discipline within the workplace.
    • Determining whether or not an act of adultery has a nexus with an employee’s duties can be a challenging task, particularly in cases where the alleged act is consensual and voluntary.

    Article 33 

    • It deals with Parliament’s power to restrict fundamental rights of members of the armed forces for proper discharge of duties and maintenance of discipline.
    • Same principle applies to police personnel and intelligence agencies.
    • Right to privacy of armed forces and police cannot be taken away unless there is a nexus with their duties

    What more can be done to improve the situation of adultery in india?

    • About: Improving the situation of adultery in India is a complex issue that requires both legal and social solutions. Here are some possible steps that could be taken:
    • Legal reforms: The laws governing adultery in India have been widely criticized as being archaic and outdated which can be reformed to make it more equitable, with equal punishment for both men and women, and with provisions to prevent the misuse of the law. 
    • Gender equality: Adultery is often seen as a crime committed by men against women, but women can also be perpetrators of adultery which can be reduced by empowering women.
    • Education and awareness: Educating people about the importance of fidelity and the negative consequences of adultery could help to reduce its occurrence through schools, community organizations, and the media.

    Way ahead

    • The recent ruling of the Supreme Court of India clarifying the application of adultery laws in the armed forces highlights the need for a clear nexus between the adulterous act and the professional duties of the personnel.
    • While adultery has been decriminalized in India, it is still considered a moral and civil wrong, and a ground for securing dissolution of marriage.
    • The government and armed forces should now focus on establishing guidelines and protocols to ensure that personal conduct does not affect the professional duties of their personnel, while respecting their private space and individual rights.

    Source: TH