Adultery and Military Discipline in the Indian Army

Syllabus: GS1/Social Issues

Context

• An Armoured Corps officer was issued a show-cause notice under the Army Rules, 1954, proposing administrative termination of service over allegations of adultery.

What is Adultery?

• Section 497 of the Indian Penal Code, 1860 (IPC), recognised the crime of adultery and provided the accompanying punishment. 
• It defined 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 of that man, such sexual intercourse is guilty of the offence of adultery”.
  • Under it, only a man could be prosecuted and punished for committing the crime of adultery. 
  • For someone to be punished for adultery, he must have had sexual intercourse with another man’s wife, without that man’s consent. 
• Punishment: It was punishable with up to five years imprisonment and a fine.

Decriminalization of Adultery

• The Supreme Court of India, in the landmark judgment of Joseph Shine v. Union of India (2018),struck down Section 497 IPC, declaring it unconstitutional. The court held that:
  • Adultery is a private matter and does not warrant criminal prosecution.
  • It violates Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty) of the Constitution.
  • Marriage is a personal relationship, and the state should not interfere by imposing criminal liability.
• However, the SC clarified that adultery would remain a moral wrong and could be invoked as a ground in civil proceedings. 

Why Adultery Can Invite Action in the Army?

• Article 33 of the Constitution empowers Parliament to modify or restrict the fundamental rights of members of the armed forces to ensure the proper discharge of their duties and the maintenance of discipline.
• Sections 45 (conduct unbecoming of an officer and the character expected of him) and Section 63 (any act or omission prejudicial to good order and military discipline) of the Army Act, 1950, continue to apply to promiscuous or adulterous conduct that affects unit cohesion or discipline.
• In 2023, the Supreme Court clarified that the Joseph Shine judgement does not invalidate or hinder disciplinary actions taken under the Army Act, Navy Act, and Air Force Act.

Arguments in Favour of Decriminalising of Adultery in India

• Gender Equality: As per the law, only men could be prosecuted; decriminalising it promotes gender equality.
• Personal Autonomy: Criminalising adultery undermines personal freedom and choice in relationships.
• Encouragement of Healthy Relationships: Decriminalising adultery shifts the focus from punishment to addressing marital issues and encourages individuals to resolve personal disputes privately instead of using the legal system.
• Overburdening of Legal System: Decriminalising adultery would reduce the burden on the judicial system, allowing courts to focus on more pressing criminal matters.

Arguments Against Decriminalising of Adultery in India:

• Protecting Marital Integrity: Criminalizing it helps protect the sanctity of marital bonds and discourages actions that undermine relationships.
• Deterrence: The threat of legal consequences may act as a deterrent to infidelity.
• Social and Moral Values: Decriminalizing it could be seen as encouraging behavior that erodes the foundation of family and societal structures.
• Impact on Women: In societies where patriarchy is still prevalent, removing criminal consequences might encourage men to engage in infidelity.
• Malimath Committee: In 2003, the Committee on Reforms of the Criminal Justice System, proposed that adultery be retained as an offense but on gender-neutral terms.

Way Ahead

• Military authorities should ensure that disciplinary proceedings comply with statutory requirements, established procedures and principles of natural justice.
• Courts and tribunals should continue to balance the armed forces’ legitimate requirements of discipline with the procedural and legal protections available to service personnel.

Source: IE