Adultery Law in Jammu & Kashmir Declared Unconstitutional: Supreme Court’s Ruling

The case of Col. Rajnish Bhandari, VSM v. Union of India & Ors. is a landmark decision concerning the validity of Section 497 of the Ranbir Penal Code, 1932, which was applicable in Jammu and Kashmir. The Supreme Court ruled that this provision, which criminalized adultery, was unconstitutional, aligning it with the 2018 decision in Joseph Shine v. Union of India, which had struck down a similar provision in the Indian Penal Code, 1860.

Background of the Case

Col. Rajnish Bhandari, a senior officer in the Indian Army, was accused under Section 497 of the Ranbir Penal Code for committing adultery. Additionally, he faced charges under Section 63 of the Army Act, 1950, for an act prejudicial to good order and military discipline.

Section 497 of the Ranbir Penal Code stated:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.”

The section also included a unique clause absent from the IPC, stating:

“In such case, the wife shall be punishable as an abettor.”

Col. Bhandari challenged the constitutional validity of this provision, arguing that it violated fundamental rights under Part III of the Constitution.

Arguments of the Parties

Appellant (Col. Rajnish Bhandari):

• The Supreme Court in Joseph Shine had already declared the adultery provision in the IPC unconstitutional, and the Ranbir Penal Code’s provision was identical in essence.
• The provision was discriminatory as it treated men as offenders while making women punishable only as abettors.
• Criminalizing adultery interfered with personal autonomy and the right to privacy.

Respondents (Union of India & Others):

• The provision was part of a legal framework applicable in Jammu & Kashmir before its special status was revoked.
• The Army Act’s provisions for military discipline should be considered separately from general penal provisions.

Supreme Court’s Observations

The Court relied heavily on its ruling in Joseph Shine, emphasizing that adultery is a civil wrong, not a criminal offense. The judgment stated:

“The pari materia provision contained in Section 497 of the Ranbir Penal Code be also declared as violative of Part III of the Constitution of India.”

The Court further held:

“The sentence ‘In such case the wife shall be punishable as an abettor,’ which does not occur in Section 497 of the Indian Penal Code, 1860, cannot stand by itself in view of the fact that the expression used is ‘In such case.’ The entire section is, therefore, declared to be unconstitutional.”

The Court also noted that the contradiction between the Ranbir Penal Code and IPC was irrelevant, as the fundamental issue was the provision’s incompatibility with the Constitution.

Final Judgment

The Supreme Court allowed Col. Bhandari’s appeal, setting aside the Armed Forces Tribunal’s judgment dated January 8, 2019. The Court stated:

“We are, therefore, of the view that nothing survives against the appellant on charges relatable to Section 497 Penal Code.”

However, it clarified that the confirmation proceedings under Section 63 of the Army Act, 1950, could continue to their logical conclusion.

Key Takeaways from the Judgment

• Section 497 of the Ranbir Penal Code is unconstitutional and cannot be applied in any pending cases.
• Adultery remains a civil matter but cannot be prosecuted as a criminal offense.
• The Armed Forces Tribunal’s findings were overturned concerning the penal code charges, but military discipline charges under the Army Act could still be pursued.

Implications of the Judgment

This ruling has significant implications, particularly for military personnel. While adultery is no longer a criminal offense, the Armed Forces can still take disciplinary action under the Army Act. The decision also aligns Jammu & Kashmir’s legal framework with the rest of India post the abrogation of Article 370.

Conclusion

The Supreme Court’s decision in this case marks the final step in decriminalizing adultery across India, reinforcing individual freedoms and the right to privacy. It ensures that personal relationships remain outside the scope of criminal law while allowing the military to maintain discipline within its ranks.

Petitioner Name: Col. Rajnish Bhandari, VSM.
Respondent Name: Union of India & Ors..
Judgment By: Justice Rohinton Fali Nariman, Justice Surya Kant.
Place Of Incident: Jammu and Kashmir.
Judgment Date: 02-08-2019.

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