Blog Details

Adultery is a punishable offence under Section 497 of the Indian Penal Code, 1860. Section 497 of the IPC states that “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.”

However, the Supreme Court abolished this provision in 2018 in the case of Joseph Shine v. Union of India. As a result, adultery is no longer a punishable crime in India. The Supreme Court declared this 158-year-old provision unconstitutional as it violates Articles 21 (Right to Life and Personal Liberty) and Article 14 (Right to equality) of the Indian Constitution.

Legal Provisions Applicable to Armed Forces:

The Armed Forces see themselves as a big family that values loyalty, mutual trust, and respect. Due to this reason, adultery in the military is considered as taking the affections of a brother officer's wife. It falls just short of cowardice, which is punishable by death. Section 69 of the Army Act is interpreted in conjunction with Section 497 to penalise officers for adultery. Section 69 deals with civil offences committed by staff and imposes a penalty based on the severity of the offence. Furthermore, Sections 45 and 63 of the Army Act of 1950 contain provisions for disciplining soldiers who engage in inappropriate behaviour. Sections 45 and 63 of the Army Act of 1950 are used to punish indiscipline in the army in general.

Section 45 refers to "unbecoming conduct" which is grounds for discharge from the military. “Unbecoming conduct: Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming of his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”

The conduct that is detrimental to good order and military discipline is covered under Section 63. It has a broad scope and addresses all sexual offences. “Violation of good order and discipline: Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.” This section's interpretation is quite broad, and it can cover a wide range of offences, including adultery. Section 53 of the Navy Act of 1957 specifies the penalty for "indecent conduct" in the Navy. After Section 497 was repealed, military tribunals would henceforth penalize officers under these sections.

The Army Act, the Navy Act and the Air Force Act are protected by Article 33 of the Indian constitution. 

Article 33 of Indian Constitution states, "Power of Parliament to modify the rights conferred by this Part (Part III- Fundamental Rights) in their application etc,- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."

Judicial Views

Recently, on January 31, 2023, the Supreme Court clarified that its 2018 decision striking down Section 497 of the Indian Penal Code (which criminalised adultery) will not affect court martial proceedings initiated against personnel serving in the armed forces for adulterous conduct. The order was issued by a five-judge constitutional bench comprising of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar in response to an application filed by the Union Government.

"The judgment of this court was concerned only with validity of S. 497 IPC and S. 198(2) CrPC...In this case, this Court had no occasion to consider the effect of the provisions of the Armed Forces Acts. As we notice, it is not as if this court approved of adultery. This Court had found adultery may be a modern problem. This Court also held that will continue to be a ground for dissolution of marriage...In view of the fact that the scheme of the acts in the context of Article 33 did not fall for consideration before this court, we must observe and clarify that the judgement of this court was not at all concerned with the effect and provisions of the Armed Forced acts. This court was neither called upon nor has it ventured to pronounce on effect of S. 45 and S. 63 of the Army Act as also the corresponding provisions of the other Acts(Navy Act, Air Force Act)", the Apex Court observed.

References:

https://www.ndtv.com/india-news/adultery-laws-still-applicable-in-armed-forces-clarifies-supreme-court-3740649

https://www.legalserviceindia.com/legal/article-6158-adultery-and-the-armed-forces.html

https://www.livelaw.in/top-stories/breaking-armed-forces-personnel-liable-to-face-disciplinary-action-for-adultery-despite-striking-down-of-section-497-ipc-supreme-court-220328