india

Updated: Jun 27, 2020 19:30 IST

The military, especially the 1.3-million-strong army, is unhappy with a 2018 Supreme Court (SC) verdict scrapping adultery as a criminal offence, and is likely to approach the apex court to exclude the defence forces from the ambit of the judgment, two senior officers said on condition of anonymity.

The Indian Army, in particular, has raised the issue with the Ministry of Defence (MoD), said a senior military officer who did not want to be named. “We will approach the court shortly,” the official added.

With the quashing of section 497 of the Indian Penal Code that criminalised adultery, the military is worried about “discipline among its ranks”.

In the military, the offence of “stealing the affections of brother officer’s wife – a euphemism for adultery – is a serious offence that is 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. Similar provisions exist in all three forces and prosecutions usually lead to the accused officer’s dismissal from the force.

“Scrapping of [section] 497 therefore has thrown up a difficult situation,” said a second senior military officer who did not want to be named. “Officers and men stay away from families for months and are looked after by others, there has to be some deterrence to deal with deviant behaviour,” the officer added.

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In September 2018, the SC scrapped adultery as a criminal offence, ruling that the 19th century law that “treats a husband as the master”, was unconstitutional.

“The adultery law is arbitrary and it offends the dignity of a woman,” then Chief Justice of India Dipak Misra, who led the five-judge bench, had observed. Section 497 made it an offence if a man had sex with the wife of another married man without his “connivance” or “consent”. But only men, and not women, could be prosecuted.

In August this year, the SC quashed General Court Marshal (GCM) proceedings that found a colonel guilty of adultery. The serving decorated colonel serving in Jammu and Kashmir -- against whom proceedings were initiated by the army in March 2016 for allegedly having two adulterous encounters with the wife of retired officer – was reinstated by the top court.

The SC quashed the GCM findings in light of its September 2018 judgment. The retired officer had complained to the army, triggering the GCM proceedings.

Till now, any complaints of extramarital relationships within the military were handled through two provisions of the Army Act – “conduct unbecoming of an officer” and conduct that disturbed “good order and military discipline”.

But the scrapping of section 497 had severely constrained the capability of the military to act against officers charged with such offences. “When men and officers are away, the last thing on their mind should be how their families are” a third senior official said, explaining the need for excluding the military from the ambit of the September 2018 judgment.

“The military isn’t like any other service. For instance, some fundamental rights enshrined in the Constitution doesn’t apply to us, for instance, men in uniform can’t join a political party when in service, cannot form unions and there are curbs on freedom of speech. Similarly, the scrapping of section 497 shouldn’t apply to the military,” the third officer added.

Senior advocate Neela Ghokale, who represented the Colonel who was reinstated by SC this August, disagreed. “Adultery as a criminal offence has been scrapped. But the military still has several methods to punish people for deviant behaviour,” she said.

The debate around the adultery law began soon after the top court’s judgment last year. Days after the verdict, former finance minister and noted jurist Arun Jaitley told the 2018 Hindustan Times Leadership Summit that in the adultery judgment, the court had ventured into areas best left alone.

He agreed that the section –which was “very badly worded” –needed to be struck down, but added that the court had not stopped at that.

“The court went a step further, when it said adultery was like other matrimonial offences, these are personal wrongs and not public wrongs and therefore outside the purview of criminal law. Now will it cover bigamy and polygamy also? Will it cover cruelty? Will it cover dowry offences – if this was the logic, the judgment would be wholly anti women,” Jaitley had said.

The judgment could, he had observed, change the Indian family structure into a western system, where the fragility of marriage and institutions might increase. He added that India had neither the kind of social security net nor divorce settlements that the West had, this consequence of this judgment could effectively drive many women to destitution.