Adultery Can Still be Punishable in Military if a Discipline Issue

Even after Section 497 was struck down, ‘adultery’ continues to be punishable in the military.

What happens to the charge of ‘stealing the affection of a brother officer’s wife’?

Picture Courtesy: The Quint

In wake of decriminalisation of the offence of adultery by the Supreme Court of India yesterday, many voices emerged questioning the usage of the term stealing the affection of a brother officer’s wife commonly used in the military. In fact, the decision might have more implications in the defence services than the general society since it is in the former that the charge of adultery is mostly pressed into service and has led to convictions and not the latter.

The term does sound archaic, and irrespective of Section 497 of the Indian Penal Code, should have been dumped long ago. However, it must be kept in mind that complications in a military set-up may just not arise out of adultery per se but due to a variety of other situations which might have an impact on military life and discipline.

Hence, the defence services can still initiate action against its personnel under Section 45 of the Army Act (unbecoming conduct) or Section 63 (violation of good order and discipline) and parallel provisions of the Navy and the Air Force, not for adultery but for other complexities arising out of it if resulting in any disruption or difficulties in the aspect of employment of the individual.

But one thing is clear, Section 497 which was the source of power of the ‘stealing’ terminology, now cannot be invoked more so in view of the fact that the Supreme Court has rightly observed that women cannot be treated as chattel, personal possession or property.

Under Judicial Scrutiny

The issue, insofar it relates to the military, has been subjected to judicial scrutiny in recent times. In 2014, the Mumbai Bench of the Armed Forces Tribunal had set aside the dismissal of a Naval Commander initiated by the Navy on the pretext of unbecoming conduct arising out of adultery and for exchanging lewd messages with a foreigner. The Government had challenged the verdict but the Supreme Court in 2015 upheld the reinstatement of the officer in service. The exchange in Court, between the then Attorney General, Mukul Rohtagi, and the bench, as reported by The Telegraph, makes an interesting read.

Further, in 2016, the Kolkata bench of the Armed Forces Tribunal comprising Justice Amar Saran (Retd) and Lt Gen Gautam Moorthy (Retd), had made interesting observations on the subject which merit reproduction:

“...the wordings ‘stealing the affection of a wife of a brother officer’ smack of patriarchy and punctilious mindset. While extra-marital relations should not only be discouraged and disapproved in no uncertain terms, to hold only one party responsible, that is, the male and not the female who may be as educated, as mature, even older and senior than the male is reflective of a pre-disposed and biased mindset that also assumes that the wife of a brother officer is the property or chattel of the male and not an independent person in her own right who has the freedom to choose to live her life on her own terms. It does not take into account that in a marriage in the 21st century, a well qualified, educated wife especially one in the Services and from a cosmopolitan background who holds the same rank as her husband does have a mind of her own, a free will of her own, may pursue a path, however abhorrent and objectionable to her husband, including having an affair...While not condoning extra-marital relationships, we must, at the same time, reflect upon the changing mores of our society. With women joining the Armed Forces in large numbers, working closely and socialising with their male counterparts, it is unreasonable to expect that the Armed Forces would be immune to social changes in relationships between the two sexes, aided in no small measure by rapidly advancing technology. While such issues adversely impact on unit cohesion and ethos of the Services and should be rightly discouraged, the time has come when aspects such as unfortunate break ups of existing marital relationships, consensual relationships with others and infidelity should not be viewed so seriously as to lead to the dismissal or even graver punishments that the IPC and statutory Acts of the Army, Navy and Air Force provide for.”

The appeal filed by the Central Government in the above case was also dismissed by the Supreme Court.

Military Will Change

The military cannot be immune to change, the Supreme Court has not offered a moral judgement or condonation or deprecation of adultery but has merely stated that while it may have civil connotations, it cannot be a criminal offence.

In my view, the same must also apply to the situation in the military, if the matter is consensual and between two individuals without implication on service life. The exception to this proposition, however, is that in case it impinges upon discipline or other aspects intertwined with life in the military, then it shall always remain open to action under Sections 45 or 63 whenever it impacts such service parameters.

The military community will self-adjust to changing times, and new interpretations of the law, as always.

(The author is a practicing lawyer at the Punjab & Haryana High Court and writes on law, public policy and military related issues. He is the founding President of the Armed Forces Tribunal Bar Association at Chandigarh and also Member of the International Society of Military Law and the Law of War, Brussels. This is an opinion piece. Views expressed in the article are that of the author’s own. The Quint does not advocate nor is responsible for them. )