"It Is Not As If This Court Approved Of Adultery" : Supreme Court Clarifies 'Joseph Shine' Judgment That Declared Section 497 IPC Unconstitutional

It is not as if this Court approved of adultery, the Supreme Court observed in its order clarifying that its 2018 judgment striking down Section 497 IPC [Joseph Shine v. Union of India (2019) 3 SCC 39 ] will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.

A five judge bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was disposing a miscellaneous application filed by the Union Government. 

The centre had contended that the application was filed in view of the Armed Forces Tribunal quashing certain disciplinary proceedings initiated against personnel for inappropriate sexual conduct by citing the Joseph Shine judgment. The ASG pointed out that the Joseph Shine judgment was premised on the patriarchal connotations of Section 497 IPC; however, the actions taken in Army are gender neutral and female officers are also liable to disciplinary action.

Section 45 of the Army Act, which penalises 'unbecoming conduct' reads as follows: Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.

The centre had sought clarification that in a case where the officer is charged with what is unbecoming conduct and it consists of an act of adultery, nothing can stand in the way of the authorities taking action.

"In fact, we may notice that it is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong.", the Constitution Bench observed.

The court thus clarified that the judgment in Joseph Shine was not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us by the applicant.

Case details

Joseph Shine vs Union of India | 2023 LiveLaw (SC) 117 | MA 2204 OF 2020 | 31 Jan 2023 | Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar

For Petitioner(s) Mr. Sarvesh Singh, AOR Mrs. Madhavi Divan, A.S.G. Mr. Sanjay Jain, A.S.G. Mr. R Balasubramaniam, Sr. Adv. Mr. Sachin Sharma, Adv. Mr. Mohd Akhil, Adv. Mr. Balendu Shekhar, Adv. Mr. Kanu Agarwal, Adv. Mrs. Deepabali Dutta, Adv. Mr. Mayank Pandey, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Ms. Nidhi Khanna, Adv. Ms. Aishwarya Nabh, Adv. Mr. Aanorita Deb, Adv. Mr. Shubham Saigal, Adv. Mr. Aishani Narain, Adv. Mr. Kaleeswaram Raj, Adv. Mr. Nishe Rajen Shonker, AOR Ms. Thulasi K Raj, Adv.

For Respondent(s) Mr. K. Parameshwar, AOR Ms. Arti Gupta, Adv. Ms. Kanti, Adv. Ms. Anannya Ghosh, AOR Mr. Dushyant Manocha, Adv. Ms. Mrinalini Mishra, Adv. Ms. Chitra Vats, Adv. Ms. Doel Bose, Adv.

Headnotes

Army Act, 1950 ; Sections 45 and 63 -  Miscellaneous application filed by UoI seeking clarification of Joseph Shine v. Union of India (2019) 3 SCC 39 ) - This Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts. We only make this position clear. 

Adultery - Joseph Shine v. Union of India (2019) 3 SCC 39 - It is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon’ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong. (Para 23)

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