~by Taniya Singh
Introduction
Adultery was considered to be a criminal offence until 2018. The provision was provided under section 497 (Adultery) of the Indian Penal Code (‘IPC’) which was challenged several times in the past. The courts in India, including the Supreme Court until 2018 had upheld the validity of Section 497, IPC time and again[1] in spite of a number of cases that suggested that the law criminalising adultery needed to be declared unconstitutional.[2] The said provision was believed to infantilize women, as it seemed to view them as nothing more than chattels of their husbands, having no assistance of their own. This was considered morally and legally wrong on many levels and subsequently, the Apex Court acknowledge the same decided to strike down the same with no other intention but to bring equality among the men and the women in this society.
Adultery law in India
Section 497 states, ‘whoever has sexual intercourse or sexual relations with a person who is and whom he knows for a fact or has any reason to believe that the woman is a wife of another man, without the consent of that man, such sexual intercourse which will not amount to the offence of rape but is guilty of the offence of adultery’.[3]
The provision penalises any man who indulges in sexual intercourse with a married woman without the consent of her husband. The man who committed adultery shall be punished with imprisonment for a term which may extend to five years or fine or with both.
The case of Joseph Shine v. Union of India[4]changed the face of the law altogether. The petition was filed by a non-resident Keralite, Joseph Shine, who challenged the constitutionality of Section 497 read with Section 198(2) (Prosecution for offences against marriage’) of the Criminal Procedure Code, 1974 (“CrPc”). Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of the husband, some person who responsible for taking care of the woman on her behalf at the time when such offence was committed, with the permission of the court. However, the section does not consider the wife of the adulterer as an “aggrieved person”.
Shine’s contentions were two-fold. Firstly, that the provision solely criminalised the adulterous act of men, exempting the woman involved and secondly, it went on to assume that married women have no sexual agency. The law addressed the injustice done to a man by another man but failed to punish the adulterous wife who equally participated in the act as well.[5] The discrimination was found to lack intelligible differentia. Moreover, the provision provided only a married man to sue his adulterous wife’s paramour; however, the aggrieved wife had no such remedy as against her adulterous husband’s paramour leaving her high and dry with no legal remedy except a ground for divorce[6]. This was viewed as a grave violation of the fundamental rights to equality, non-discrimination, privacy, dignity and autonomy guaranteed under Articles 14 of the Constitution (‘Equality Before Law’);, Article 15 of the Constitution which prohibits discrimination on the grounds of religion, race, caste, sex or place of birth and Article 21 (‘Right to Life’) of the Constitution of India which states that no person shall be deprived of his life or personal liberty except according to procedures established by law.
The Supreme Court on August 2, 2018 said in reference to section 497, "The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else's desire. That's not Indian morality."[7] This law viewed women as if they were mere property of the husband having no control over their own body, mind or choices. The law made it as though woman has no other choice but to submit her will, choice and independence and freedom of making decision, with regard to herself, to her husband. The law assumes that women have no right or say at all in their sexual matters.
The Honourable Court while striking down adultery as a crime held that it is “undoubtedly a moral wrong qua the family and the spouse”[8]. In the judgment, it was further held that a civil remedy will continue exist. This means that even though adultery will not be recognised as a criminal offence under the IPC it shall be available as remain a ground for divorce under section 13(1)(i) of the Hindu Marriage Act.[9] This was considered to be more than a blessing. The judgement concluded by stating that a husband or wife cannot be forced to stay loyal to their spouse just because the law demanded them to be.
Adultery in the Armed Forces
Not long back, the Centre moved to the Supreme Court, requesting that adultery should remain criminalised for the members of the armed forces.[10] The contention proposed to carve out an exception for the armed forces despite the Shine judgment striking down Section 497 as unconstitutional.[11] The contention aimed to provide segregation between treatment of adultery among civilians and members of the armed forces. The main question arising here is, if this is allowed, whether it will be discriminatory in nature towards commissioned officers vis-a-vis the general public or the same will be treated to have intelligible differentia
The armed forces see adultery as ‘stealing the affections of a brother officer’s wife’ — as an offence that is just a scratch below the worst offence a personnel can be accused of, cowardice[12] The provision in respect of adultery is found to be a criminal offence in the respective legislations of the three defence services. Section 45 (conduct unbecoming) or section 63 (violation of good order and discipline) of the Army Act, 1950; Section 45 (dealing with Scandalous conduct punishable with short Imprisonment) & 65 (Kinds of courts-martial) of the Air Force Act, 1950, and Sections 54 (2) and 74 of the Navy Act (Offences against good order and naval discipline), 1957 speaks of ‘unbecoming conduct’ are the sections pursuant to this. The Army does not have any specific acts which deal with the issue of adultery and homosexuality but tries its personnel for unbecoming conduct under Army Act 45 if they are found indulging in such acts. However, these provisions are gender-neutral and hence, applicable to both men and women serving in the forces.
Chapter VII of Indian Penal Code, 1860 deals with offences committed by civilians in relation to officers in Army, Navy and Airforce of the Government of India. The main objective of this chapter is to maintain discipline and order in the Armed Forces of the Union.
Men and women serving as armed forces personnel are expected to stay on duty away from their families. Sometime this separation can last for years. The wives and the children of such officers are cared for by units of army personnel in his absence which may cause instability in the minds of the army personnel regarding the family indulging in unfortunate conduct.[13]
Even women serving in the forces seem to be in favour of the adultery law and want it to be reinstated.[14] In the past a number of incidences have occurred, wherein, women officers were living separately from their husbands, because of work, and the latter was subsequently caught having an affair. When women officers filed complaints against their adulterous husbands either it was dismissed altogether or not given the same importance as complaints by the fellow male officers. There have been instances when the women were even asked to retract the complaint.[15] This gender- neutral law will place men and women at the same footing saving women from the injustice faced by them in the past. It is suggested that this law will no longer discriminatory against women as the rule will apply to both men and women when found guilty.[16]
Section 497 of the IPC treated women as the property of their husbands, did not incriminate adulterous wives for any wrong doing and also provided no remedy for the aggrieved wife of an adulterous husband. This is not the case in the laws governing the armed forces. This law will be more suitable to the peculiar circumstances of the armed forces when compared to the general public.[17] In fact, there are a lot of offences which are not even known by the general public but are punishable with death if the offence is committed by army personnel. Offences like desertion have no consequences under penal law however it is a very serious offence, punishable by death under military law.
If there arises any case related to the sections for unbecoming conduct or violation of good order and military discipline ,and the forces even after the Joseph Shine judgement of 2018 decide to go forward with prosecuting it, could very well be accused of going around the law which could compromise the sanctity of the armed forces.
Over and above all the arguments already made, it is pertinent to note that the Parliament is empowered as under Article 33(1) to restrict the scope of application of fundamental rights upon the armed forces personnel, and the present circumstances I believe warrant the same as far as criminalising adultery is concerned.
Decriminalisation of adultery means that while adultery itself cannot be a crime, there can be consequences for adultery acts in the context of different employment. This is further from the words of retired Adjutant General Lt. Gen Ashwani Kumar who clarified that though the armed forces take action adultery because of adultery, they do not charge the person with adultery.[18]
Conclusion
Given how the law in the armed forces is gender neutral, considering the latest judgement where in the women were granted the right to permanent commission. It will apply to all women officers in the Indian Army in service, irrespective of their years of service, adding that after the Delhi High Court judgement, the Centre should grant permanent commission to women officers.[19] Keeping in mind the above stated example where in the forces are moving forward towards equality faster than ever, so the ground on which the Joseph Shine judgment was passed is rendered inapplicable here. Moreover, given the peculiar circumstances of the armed forces as I have elaborated above, I am of the opinion that the Honourable Supreme Court should make an exception for the armed forces, as has also been requested by the Centre. This section before the amendment of 2018, was gender bias. But what is proposed by the forces is that they won’t apply the exact spirit of the 2018 repealed law but change it by making it gender neutral. This will make the women liable for her actions as much as a man was held liable before. This will also let the women have a huge say in the matter which was missing earlier. The lives of the people employed in the forces is different from that of the general public so painting everyone with the same brush would only lead to injustice. Thus, this law with the proposed amendment would only help the forces.
[1] Prabhash K Dutta,What is adultery law? How IPC Section 497 is anti-women, in, Sept.19, 2018. [2] Prabhash K Dutta,What is adultery law? How IPC Section 497 is anti-women, in, Sept.19, 2018. [3] THE INDIAN PENAL CODE, 1860. [4]2018 SCC OnLine SC 1676. [5] The Wire Staff, Centre Moves SC to Keep Adultery as a Crime in the Armed Forces, the wire, JAN.13, 2021. [6] THE HINDU MARRIAGE ACT, 1955, §13(1)(i). [7] Prabhash K Dutta,What is adultery law? How IPC Section 497 is anti-women, India Today, Sept.19, 2018. [8] Krishnadas Rajagopal, Adultery can’t be decriminalised for armed forces, TH, JAN.13, 2021. [9] Ibid [10] Debayan Roy,SC judgment decriminalising adultery raises concern among Army personnel about family [11] Ibid [12]Sunetra Choudhury , Even Woman Officers Want Adultery Law In Army, HT , (Jan. 15, 2021) [13] Debayan Roy,SC judgment decriminalising adultery raises concern among Army personnel about family "indulging in untoward activity:" Centre to Supreme Court, Bar and bench, Jan.15, 2021,12:01AM), can be accessed at: https://www.barandbench.com/news/litigation/central-government-seeks-exemption-for-armed-forces-adultery-judgment-supreme-court#:~:text=Indian%20Armed%20Forces%20do%20not,decriminalising%20the%20offence%20of%20adultery [14] Dhananjay Mahapatra, Adultery should continue to be offence in armed forces, TNN, Jan 14, 2021. [15] Sunetra Choudhury , Even Woman Officers Want Adultery Law In Army, HT , (Jan. 15, 2021) [16] Dhananjay Mahapatra, Adultery should continue to be offence in armed forces, TNN, Jan 14, 2021. [17] Supra note 7 [18] Rangin Pallav Tripathy & Suman Das Bhattamishra, India’s effort to crimilize adultery for the armed forces reflects a paternalistic mindset, Scroll , Feb 01, 2021. [19]Secretary, Ministry of Defence v. Babita Puniya & Ors (2020 SCC OnLine 200)