By Sanjay Raman Sinha
Five years after the Supreme Court decriminalised adultery, in January 2023, it revisited the issue and ruled that the army was exempt from the ambit of the verdict. This means that the army can take criminal action against their personnel if found indulging in adultery. The Court held that decriminalisation of adultery does not apply to the Armed Forces.
The Court clarified that the 2018 Joseph Shine judgment was concerned only with the validity of Section 497 of the IPC and Section 198(2) of the CrPC dealing with adultery, and not its impact on the Army Act, the Navy Act and the Air Force Act.
Maj Gen (retd.) Nilendra Kumar, former Judge Advocate General of the Indian Army, told India Legal: “The recent decision of the Supreme Court is legally appropriate. On the face of it, the 2018 judgment did not deal with adultery under the Army Act Sections 45, 63 or in the context of Sections 90 or 91. This was not a matter raised before, or covered, by the Supreme Court. Apparently, a need for this was felt because some Armed Force tribunals and High Courts took a view that the Supreme Court judgment would apply to all instances of adultery.”
Defence personnel of the Army, Navy and Air Force are governed by the Army Act, Navy Act and Air Force Act, respectively. Under these special laws, the fundamental rights of these personnel are subject to curtailment under specific conditions. The three laws are protected by Article 33 of the Constitution, which empowers Parliament to enact laws restricting fundamental rights to a specific category of people, including members of the Indian Army and intelligence organisations.
The working conditions of the army are such that personnel are continuously on the move. They may be posted in border areas or sensitive locations across the country, leaving their families at base camps. Officers and fellow army men, by tradition, are expected to take care of such families. This, at times leads to adulterous relationships. The army is quite strict in such matters and has its own rules of conduct, laws and regulations. The punishment is meted out after administrative proceedings and court martial.
Maj Gen Kumar added: “Instances of adultery are not coming up in alarming numbers before the authorities. However, due to induction of women in the military and increased access on account of social media, together with the prevailing social environment, such cases are not infrequent either.”
Section 497 of the IPC defines adultery as: “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
As per a 2020 survey, about 55% of married Indians have been unfaithful to their partners at least once, of which 56% are women. Thirty percent of cases filed for divorce in metros have adultery as a reason.
Interestingly, adultery doesn’t figure in the Armed Force Act, Air Force Act and Navy Act and they merely mention “unbecoming conduct” as a synonym for adultery. The definition is fairly vague. What is vogue in armed force parlance is “stealing the affection of a brother officer’s wife”.
The patriarchal mindset is clear in the phrase, so is the colonial hangover. Many traditions of the army have colonial roots. Moreover, the strong hierarchy and iron clad discipline have the potential of seniors transgressing juniors’ rights and may lead to extramarital affairs with their wives. Adultery has the potential of destroying the family fabric and can lead to laxity of morals and indiscipline amongst the ranks of the army, proving detrimental to the security of the nation.
Raising concern over the social ramifications of adultery, Justice Indu Malhotra, one of the judges of the bench in the Joseph Shine case wrote: “Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victimless crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.”
Law has shaped the institution of marriage and women’s right in India in a very seminal way. Rights of women in areas of marriage, property inheritance and succession have been altered to help them. Divorce laws have been reworked and sexual assault and harassment laws have been enacted post judicial pronouncement. The web of progressive jurisprudence has created a safety net for women and bolstered gendered equality. The laws have ensured that the fundamental rights of women are not smothered. Sexuality is considered the core of individual identity.
Writing his verdict in the Joseph Shine case, Justice DY Chandrachud held: “The sexuality of a woman is part of her inviolable core. Neither the state nor the institution of marriage can disparage it. By reducing the woman to the status of a victim and ignoring her needs, the provision penalizing adultery disregards something which is basic to human identity.”
This piece of judgment can be understood to be the central hypothesis of the verdict decriminalising adultery. In a unanimous verdict, the five-judge Constitution bench struck down Section 497 of the IPC. Prior to the 2018 verdict, adultery was biased in favour of men.
Under Section 497, a man had the right to initiate criminal proceedings against his wife’s lover. Under Section 198(2) of the CrPC, the husband alone can complain against adultery. The Court struck down both these provisions and decriminalised adultery. Nevertheless, adultery continues as a ground for divorce in civil law.
Justice Dipak Misra wrote in his part of the judgment: “That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.”
The Joseph Shine verdict viewed adultery through the prism of gender equality and treated it as a social dysfunction rather than a criminal act. Justice Chandrachud explained the jurisprudence laid out in the verdict: “The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an ‘unpopular’ choice. Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. If the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink.’’
The terms of plea of the Joseph Shine case didn’t touch upon the issue of adultery in the armed forces. The January 2023 judgment was more specific and taking national security and integrity of the armed forces as a touchstone, the Court delineated its judgment allowing the army to try out adultery cases according to existing mechanisms.
Maj Gen Kumar added with concern: “The sanctity of marriage as an institution and also the responsibility of unit commanders towards the families, and more importantly, separated families, needs to be reassessed. Unhappy married life would, of course, impact the performance of military duties at different ranks. Family cohesion, solidarity and peace have to be aimed at and achieved by taking requisite corrective actions. Divorce and legal separation are time consuming processes. This would call for a combined effort by the commanders, staff officers, legal advisors, psychiatrists and the leadership of the Army Wives Welfare Association.”
The Armed Forces are a part of society, so it not strange that social dysfunctions in civilian society get reflected there as well. However, keeping in view the sensitive nature of the armed forces, an institutional and holistic approach is the need of the hour.
The Armed Forces Act needs to define adultery in specific terms. Legal action should be strong and prompt, but more importantly, social and normative mechanisms should be installed within the Forces so that deviant behaviour is handled appropriately.