Adultery - Is it punishable in Indian Army?

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By Kriti Shukla Army Blogs 2nd July 2020

Why should you read this?

I was watching the movie Rustom when I thought how difficult it is for army officers to leave their loved ones for so long and finally come back home to realize that while they were saving the country they were also being cheated on.

We hold people in the army as our ideals or heroes and place them on a pedestal. But the problems they face in their personal and married lives are just as real as ours.

This post talks about the law related to adultery in India in general and specifically in the armed forces, especially after the recent Supreme Court decision decriminalizing adultery.

Table of contents

Adultery law in India
Adultery and Army Laws
Military Courts, Court Marshal, Army & Adultery
Adultery not punishable in Army
Conclusion

Adultery law in India

The Section 497 of Indian Penal Code, 1860 (IPC) defined the offence of Adultery and the punishment for it. The Section laid down that any man having sexual intercourse with a married woman and does so without her husband’s consent, is said to commit the offence of adultery for which there was an imprisonment of up to 5 years or fine or both.

Let us understand the important elements of this law:

It is only applicable to men, and not women. Hence, women cannot be held guilty under this section. They are always assumed as the victim in this case, which is an exception to other criminal offences which are gender-neutral.
The adulterous relationship MUST be between a man (married or unmarried) and a MARRIED woman.
It must be without the consent of the married woman’s husband.

The specific wording of the provision as we see creates certain problems because:

It is patriarchal in its approach since:
1. It always assumes the woman as the victim, even if the relationship was consensual.
2. It speaks about the husband’s consent which presumes that he has a right over the woman’s choices. This doesn’t make sense in the modern world as the number of failed marriages and divorce rates increase.
It does not include the scenario where a married man is having sexual relationships with an unmarried woman.
It is unfair to the woman as the procedure for divorce in India is long-drawn and to expect only the wife to control her natural sexual urges for such a long period is iniquitous.

However, this provision has been repealed (or struck off) by the Supreme Court in the 2018 judgement of Joseph Shine v. Union of India^{^[1]}.

Adultery is hence, no longer a criminal offence in India.

So far, so good.

But the armed forces were faced with a dilemma due to this decision. Let us see how.

Adultery and Army Laws

There is no offence of “adultery” defined in the Army, Navy of Air Force Act.

The Armed Forces consider themselves a large family with tremendous emphasis placed on loyalty and mutual trust and respect. Hence, in the military, the offence of adultery is described as “stealing the affections of a brother officer’s wife.” It is considered only a notch below “cowardice”, which is punishable with even death.

The punishment for “stealing the affection of a brother officer’s wife” derives its power from section 497 and is not a standalone offence.

Section 69 of the Army Act is read along with Section 497 to punish officers for adultery.

Section 69 talks about civil offences committed by personnel and prescribes punishment as per that assigned for the offence by the law in force in India.

Generally, Section 45 and Section 63 of the Army Act, 1950 are used to punish indiscipline of any form in the Army. Similar provisions are defined in the Navy and Air Force Acts too.

Section 45 speaks about “unbecoming conduct” and is punishable by dismissal from service.

Section 63 relates to “act which is prejudicial to good order and military discipline”. This section is very wide in its interpretation and can include a variety of offences including adultery.

In the Navy, Section 53 of the Navy Act, 1957 lays down the punishment for “indecent acts”.

After repealing Section 497, military courts will now punish officers under these sections instead of Section 69 as earlier.

Military Courts, Court Marshal, Army & Adultery

The Armed Forces, owing to the special conditions in which their personnel operate, demand various exceptions to conduct their operations and therefore, they are provided autonomy on various judicial matters.

Section 5 of IPC itself, especially clarifies that no provisions in the Act will have any effect on laws specifically made for punishment of “mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.”

“Generalia specialibus non derogant” is a principle of law which means specific laws shall override general laws.

Applying it to this scenario, laws made specifically for the Armed Forces, i.e. the Army, Navy and Air Force Act shall override general laws of the land, ex. IPC, CrPC, etc.

Hence, military courts have autonomy to apply these laws above other laws in their proceedings.

Also, as mentioned earlier, the Armed Forces place special emphasis on loyalty and mutual trust, which are cornerstones of their operational effectiveness. They also retain most of the values and structures from their British era and are steeped in traditions and legacy.

“Esprit de core” is the building block of the Armed Forces and any act which disrupts this is dealt with severely and swiftly. Adultery with a brother officer’s wife is therefore considered a betrayal of his trust and detrimental to the morale and values of the force.

The Army has hence, asked the Defence Ministry to retain homosexuality and adultery laws for army personnel because the Army feels that it might break down the spirit of brotherhood.

Military Courts hence mete out the harshest possible punishment for this offence, mostly dismissal from service, considered a great dishonour for every man in uniform.

Adultery not punishable in Army

There are however, subtle winds of change.

Times are changing and young officers, exposed to the liberal social and sexual norms of society often dislike the strait-jacketed approach of the old conservatives.

This has started getting reflected in some judgements.

The 2016 judgement by the Calcutta bench of the Armed Forces Tribunal, in the case of Flt Lt Ishan Sharan, is a landmark.

Sharan was “dismissed from service” by the air force in June 2013 after a court of inquiry found him guilty of having an affair with a fellow officer, who was the wife of a senior IAF pilot.

The Armed Forces Tribunal, while directing that Sharan’s sentence should be softened from ‘dismissed’ to ‘released from service’, to relieve him from the stigma, also advised the air force not to be harsh on extra-marital affairs in the changing social scenario.

“The time has come when aspects such as unfortunate break-ups of existing marital relations, consensual relations with others, and infidelity should not be viewed so seriously as to lead to dismissal or even graver punishment under the IPC and statutory Acts of the Army, Navy and Air Force…while not condoning extra-marital relationships, we must reflect on the changing mores of our society. With women joining the armed forces in large numbers, working closely and socializing with their male counterparts it is unreasonable to expect that the armed forces will be immune to social changes in relations between the two sexes,” said the AFT bench of Justice Amar Saran and Lt Gen Gautam Moorthy.

In 2014, the Mumbai bench of the AFT had similarly set aside the dismissal of a naval commander for adultery and unbecoming conduct, for exchanging lewd messages with the wife of a fellow officer.^{^[2]}

We thus see that the Armed Forces are slowly but surely taking a step in the direction given by the Supreme Court.

Conclusion

We thus saw the laws related to adultery, in the civil as well as military spheres, the changes to these laws in recent times and their impact on the army and also on us. Hope this clears some conceptions and misconceptions about adultery and its position in law.

Adultery still remains a deeply controversial topic which divides public opinion right down the middle. It has to be treated as a socio-legal phenomenon than as a socio-legal problem.

The law is a reflection of society and vice-versa. The law has now made its stand clear. What remains to be seen is how we as a society and the Army as an institution move forward from here.