Introduction
Marriages are one of the society’s most complex, valuable relationships shared between two humans. In societies like India, marriages take the form of a divine obligation of all individuals, as is understood by the sacred wows uttered in time of solemnization of marriages across all faiths.
Thus, Infidelity towards one’s spouse (which — by convention or compulsion — is a man and a woman in the form of a husband and a wife) in the form of adultery amounts to both the breach of trust between spouses as well as the lapse of sanctity of the institution of marriage.
What makes a marriage an institution is the fact that to maintain the sanctity of the marriages, the society has acted as a sieve in strictly filtering out the undesirable non-essentials of a marriage. Though one of the desirable essential, and by far the most fundamental component of a marriage, is loyalty towards one’s spouse.
Which is why legal systems throughout history have criminalized adultery in order to deter such events from occurring which could potentially shake the pillars of an acceptable marital relationship. One such deterrence was allegedly manifested in Section 497 of the IPC which criminalized adultery since the British era, but it was despised for its problematic approach towards the very act it was criminalizing.
So, when the Supreme Court of India finally decriminalized adultery in 2018. The question which arose was that should, and can adultery be permitted in the Indian military – an organization which takes immense pride in its honor and vigilance, both towards the nation and their fellow officers? Keeping in mind the separate legislations concerning adultery in the armed forces and its justification.
Defining adultery
Adultery is defined as a sexual intercourse between a person and another person to whom they are not married. In simple words, it is called extramarital relations. Although, the constituents and consequences of adultery vary across traditions, so does the immunity from liability of adultery.
Criminalization of adultery in modern Indian law
Section 497 of the Indian Penal Code of 1860 read 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 or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
Because this was a pre-Constitutional law, it viewed women as inferior to men, hence only men had the right to sue the third party. This also means that if the adulterator is married, his wife has no legal remedy to sue the female with whom her husband has had sexual intercourse with.
Also, as it was specifically mentioned that wife cannot be an abettor, the husband whose wife eloped with another adulterous man had only one legal redressal, that of divorce since adultery was a criminal offence, it was a ground for divorce under sec. 13 (1) (i) of Hindu Marriage Act, 1955.
The Supreme Court of India decriminalized adultery in the landmark judgement of Joseph Shine vs Union of India in 2018 by striking down Section 497 of the Indian Penal Code as well as Section 198(2) of the CrPC which specified that only a husband can file charges of Section 497. This was done on the grounds that the concerned laws were found to be “archaic and paternalistic law, which infringes upon a woman’s autonomy and dignity” .
Adultery and the Indian Military
Since the Joseph Shine judgement of the Supreme Court, the Indian Military Personals were put in a complicated position. Previously, when adultery was a crime, the army personals could be posted afar from their homes without having to worry about their families back home. But since the deterrence of Section 497 was scrapped, it caused instability in the armed forces as it was unimaginable to comprehend what was felt by army personals who, while safeguarding their country might be deceived back home.
Adultery in the armed forces is defined as ‘stealing the affection of brother officer’s wife’ and the one who was found guilty was cashiered from service . It is only a step below cowardice.
Plea for maintenance of adultery as a crime in the Indian military
In November 2020, the Centre had filed a miscellaneous application asking the Supreme Court to provide clarity to whether adultery in military was pardoned post Joseph Shine judgement. In 2021, the Ministry of Defence requested the Supreme Court to retain adultery as a crime for the personals in the armed forces. Former Attorney General K K Venugopal and Additional Solicitor General Madhavi Divan told in the Supreme Court to a bench comprising of Justices R F Nariman, Navin Sinha and K M Joseph that the armed forces work in such an atypical work environment that when the jawans are posted afar in unhospitable terrains, their wives are being taken care of by their units back in family accommodation which are often visited by fellow officers to look after them.
In such case, when the officers are positioned far away from their families in unimaginable circumstances, it is only reasonable that they should not be concerned with the thought of infidelity from their spouses behind their back. And thus, adultery in the military should continue to be governed under Section 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54(2) or 74 of the Navy Act.
How is criminalization of adultery in the Indian military Constitutional?
The Joseph Shine judgement was a remedy to the erroneous Section 497 of IPC and Section 198(2) of CrPC. Firstly, as stated by AG K K Venugopal to the Supreme Court Bench, was that it was arbitrary, which violated Article 14. Secondly, it was discriminatory towards women and treated them as property, again violating Article 14. Lastly, it violated the right to privacy provision recognized under Article 21.
Thus, criminalization of adultery for the civilians was rightly judged as unconstitutional, for it violated the aforementioned Fundamental Rights.
Then how can an unconstitutional law be permitted for the military personals? AG Venugopal asserted, as accepted by the Bench, that such violations are exempted by Article 33. Thus, despite violating the Fundamental Rights, the anti-adultery provisions of the army laws must not be considered arbitrary and intrusive and hence not unconstitutional.
Article 33(a) of the Constitution of India states that the Parliament may, by law, determine to what extent the rights conferred in Chapter 3 (the Fundamental Rights) of the Constitution are applicated to the members of the Armed Forces, amongst others.
Also, AG Venugopal clarified, that the adultery criminalization laws of the army do not distinguish between males and females (unlike Section 497). Which means both males and females who are subject to Army Act can be convicted of adultery.
Final Verdict
On 31st January, 2023, a Constitutional Bench of the Supreme Court led by Justice K M Joseph clarified that the Joseph Shine judgement, which decriminalized adultery, did not apply to members of the armed forces which are accused of ‘conduct unbecoming’. Madhavi Divan who appeared for the Center had argued that the application sought for this clarification was in light of the fact that the Armed Forces Tribunal had been quashing disciplinary proceedings launched against army personnel for inappropriate sexual behavior by citing Joseph Shine judgement. And, the adultery prohibition laws of the army laws were gender-neutral unlike Section 497 of the IPC. Furthermore, the personnel deployed far away from their homes must not feel insecure or disheartened. On the contrary, Adv Kaleeswaram Raj appearing for the petitioner in the Joseph Shine Judgement had submitted that the clarification sought by the Union was unmaintainable as such clarificatory judgement cannot be given and individual cases must be examined on a case-to-case basis.
CONCLUSION
One marries for many reasons. Some marry for security, while others marry for companionship. And while some marry for love, others also marry out of outright compulsion. Just as the reasons behind marriages are varied, so are the reasons for the end of marriages. In today’s world, where live-in relationships are looked upon as alternatives for marriages and open relationships are becoming increasingly normalized, one might wonder then, if adultery is really so bad? The answer to this question is subjective, as it should be. The question here, as understood from the Joseph Shine judgement, was not whether adultery is moral or otherwise. The question was how far can society, and hence the law, go in regulating norms of marriage? And how effective are these norms in curbing what they expect to curb? With Joseph Shine, the Supreme Court has set a precedent which eliminates the discriminatory arbitrariness of the dos and don’ts of marriages from the law, while staying within the Constitutional limitation of Article 33 and respecting the separate legislature of adultery in the armed forces.
Author(s) Name: Shlok H. Shah (Gujarat National Law University, Gandhinagar)
