I write on the implication of the Supreme Court ruling on adultery on the military for 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 and 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.
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 TheTelegraph, makes interesting reading.
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
certainly 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.
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, this churning and the interpretation of law, as always
