There is no offence specified as ‘Adultery” in the entire Army Act or the Rules made thereunder. The Defence Service Regulation touch upon the subject of ‘plural marriage’ but not upon the term ‘adultery’. In the pre-constitutional Military Manual, codified by the British, obviously also prior to the enactment of the present Army Act, 1950, there appears to be a reference to ‘stealing the affection of a brother officers’ wife’ in the Armed Forces. Whether the ingredients of the said act fulfil the ingredients of the offense of ‘Adultery’ as previously appearing in Section 497 of the Indian Penal Code, is not clear, since what constitutes ‘stealing the affections of’ another’s wife is quite puzzling. The said term denotes a patriarchal mindset since it directly implies the lack of complicity of the lady concerned. ‘Stealing’ by its very meaning indicates, lack of consent and will of the other person. But statistics in this regard demonstrate that many officers have been prosecuted for having consensual relationship with the wife of a brother officer.
Admittedly, the concept resonates logic and good faith, especially in the peculiar nature of environment and hierarchal working of the army. Undoubtedly, the peace and harmony of the environment of a regiment or a unit will be adversely affected if the Commanding officer or any superior officer is in a relationship with the wife of a subordinate officer or any other member of the armed forces. The entire working of the unit will suffer and may result in a complete destruction of faith and confidence which is required for the unit to discharge its duties as a cohesive unit, in the face of the enemy and in the interests of the security of the nation. This damaging situation has to be avoided at all costs and in this context, the said act of indiscretion, by any officer, in exhibiting or having such relationship is undeniable dangerous and against the interests of the organisation. Accordingly, the said act becomes an act done by the officer which is ‘unbecoming’ his position as such and also ‘prejudicial to good order and military discipline.’
However whether all such consensual relationships have to be looked upon as an offence or whether it has to be seen whether any such act of the parties involved, is likely to have caused any ‘prejudice’ to any other person subject to the act or has caused damage or injury to the environment in the regiment/unit, where the offender is posted or attached, is a moot question which needs to be looked at objectively.
For eg, in a case where an officer is alleged to be in a relationship with a lady married to an ex serviceman, who is not remotely connected with the place of service of the so called offender, it is unfair to convene a General Court Martial to prosecute such officer, especially if there is no indication of any prejudice being caused to any other person subject to the army act nor any adverse ramification in the environment of the working of the unit, since the husband/ complainant is not even a part of the unit and hence there can be no disruption or disturbance in the working of the organisation.
At the same time, if such relationships are flaunted in the presence of other officers or troops in the unit, the troops can become completely de motivated to discharge their duties since this can set up an immoral precedent for them. The troops generally look up to the officers commanding them and any such conduct which appears unsavoury and immoral to their individual and personal moral code of conduct, is sure to have an adverse effect on the working of the unit.
Similarly, in light of the fact that the Supreme Court of India has already declared the offence of ‘adultery’ appearing as Section 497 in the Indian Penal Code to be unconstitutional on various ground, it is inappropriate and difficult for the Army to continue to prosecute its members for the said offence. The Supreme Court in its landmark decision in the case of Joseph Shine Vs Union of India, has already held that the said act can perhaps be a matrimonial offence but cannot continue to be criminalised, inviting prosecution.
On the other hand, let us see how private companies deal with office romances. According to a survey published by CareerBuiders Association, instances of workplace romance have hit a 10-year low, with 36 percent of workers in 2018 reporting that they were dating a co-worker, down from 40 percent in 2008.
Any workplace romance, extramarital or not, can damage workplace morale or productivity if there are inappropriate displays of affection, favouritism from a supervisor dating a subordinate, a bad breakup that results in co-workers choosing “sides” or sexual harassment. Even the MNC managements admit that an extramarital affair is its own potential minefield. Each organisation may have its own policy regarding office romances and “no fraternization” or “no romantic relationship” policies may seem like a good idea, but they can create a different set of challenges.
In an interesting case a question raised in the writ petitions was to whether Section 4 of the Rajasthan Conduct Rules of 1971, binding a Government servant not to lead an immoral life, would include in its ambit a consensual relationship entered between an adult man and woman and whether for such an action, the employer, with whom the individuals are working as employees, would be authorized to initiate departmental action and whether such an action having been taken by the department would amount to breach of the right of privacy and right to live with dignity.
The Court referred to the observations made by the Supreme Court in the case of K.S. Puttaswamy and another Vs. Union of India. The Rajasthan High Court also referred to the observation of the Supreme Court in the landmark decision in the case of Maneka Gandhi Vs Union of India and another, wherein Krishna Iyer, J. observed that life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.
Thus, the Rajasthan High Court, affirmed the view that such adulterous relationship would be considered as an immoral act so far as the Indian society is concerned. The same would, however, not be a ground for initiating departmental proceedings by the employer and it be left best for the person who may be affected individually to take remedy and proceed against him/her in civil law or for initiating divorce proceedings as the case may be.
Coming back to the position of the said offence in the army as an ‘employer’, the organisation is definitely entitled to protect its objective of securing the nation’s borders and its other duties, without having to be complacent with any acts or conduct of its personnel, which will hamper the discharge of its duties and which may prove detrimental to the security of the nation. However, while doing so, it is imperative that a sense of objectivity be maintained and a particular act may not be punished across the board, without taking into account the circumstances in which any such act has been done or alleged to be done. It is also true that the percentage of disruptions in families has increased and divorces, separation of spouses, estrangement are not very rare or uncommon. All such estrangements need not necessarily culminate in a final decree of divorce. Also what needs to be accepted that even matrimonial cases of divorce, etc which are already in litigation and in courts, the time frame for a final adjudication is unacceptable and admittedly quite lengthy. Whether it is expected of such people, who are going through the throes of matrimonial litigation and in the meantime, stuck in a loveless marriage, only on account of a lengthy litigation, that till such time a formal decree of dissolution of marriage is not passed, they will abstain from any companionship, stumbled upon by them, perhaps with a colleague or a friend or anybody else they meet, only for lack of formal decree by a court, lest the solace or comfort they seek and find, be held against them, as an act of crime, which can cost them their jobs or their honour, by referring them as immoral people or as a person indulging in moral turpitude or worse.
The task of the employer is quite difficult. The balance between social morality, organisational requirements and integrity vis a vis the individual’s right of privacy are not matters to be resolved with a swipe of one broad singular brush. An objective and holistic view has to be taken of the entire facts and circumstances of each case, before proceeding with a pre-determined notion of guilt on the part of the alleged offender/s, and treating each case on the basis of its individual facts and complexities, lest an otherwise competent and valuable person is not sent away on a fixated goal of achieving zero tolerance of a concept called ‘adultery’.
–Neela Gokhle
The author is a practising advocate in Supreme Court of India, New Delhi. The views expressed herein are personal only.