What is adultery?

The offence of adultery and the punishment for it are specified in Section 497 of the Indian Penal Code, 1860. The Section stated that any male who has sexual intercourse with a married woman without her husband's consent is guilty of adultery, which carries a penalty of up to 5 years in jail or a fine, or both.

Following are the elements:

• It only applies to men; it does not apply to women. As a result, women cannot be held responsible under this provision. In this scenario, they are always considered to be the victim, in contrast to other criminal offences that are gender-neutral.
• A male (married or unmarried) and a married woman must be involved in an adulterous relationship.
• It must be done without the married woman's husband's permission.

Why adultery as a criminal offence is abolished?

• This provision was, however, abolished by the Supreme Court in Joseph Shine v. Union of India in 2018. As a result, adultery is no longer a criminal offence in India.
• The 158-year-old legislation was declared illegal by the Supreme Court, since it violated Articles 21 (Right to Life and Personal Liberty) and article 14(Right to equality).
• Sections 198(1) and 198(2) of the CrPC, which allow a husband to file charges against the man with whom his wife committed adultery, were also deemed unconstitutional by the Supreme Court.[i]

How the decision impacted the armed forces?

However, as a result of the decision, the armed forces were placed in a difficult situation. The 2018 judgment resulted in instability in armed forces. Here the question raised that adultery should be decriminalize in armed forces or not? The military, particularly the 1.3 million-strong army, was dissatisfied with a Supreme Court decision in 2018 that abolished adultery as a criminal offence.

The case was subsequently submitted to the chief justice of India, who issued instructions forming a five-judge bench, to determine the implications of the 2018 ruling on the armed services.

It cannot be imagined how tough it must be for army officers to leave their loved ones for such a long time and then return home to discover that, while safeguarding the country, they were also being deceived.

People in the army are held up as ideals or heroes, and they are regarded as such. However, the issues they encounter in their personal and married life are no less genuine than ours.

Adultery and the army laws

The Armed Forces regard themselves as a huge family that places a high value on loyalty, mutual trust, and respect. As a result, adultery in the military is defined as taking the affections of a brother officer's wife. It is barely a step below cowardice, which is punished by up to death.

Section 497 empowers the punishment for stealing the affection of a brother officer's wife; however it is not a stand-alone offence.

To penalize officers for adultery, Section 69 of the Army Act is interpreted in conjunction with Section 497.Section 69 deals with civil offences committed by staff and provides a penalty based on the severity of the offence as determined by Indian law.

Sections 45 and 63 of the Army Act of 1950 are used to penalize indiscipline in the Army in general. Section 45 refers to "unbecoming conduct," which is grounds for discharge from the military. The conduct that is detrimental to good order and military discipline is covered under Section 63. This section's interpretation is quite broad, and it can cover a wide range of offences, including adultery. The punishment for "indecent conduct" in the Navy is outlined in Section 53 of the Navy Act of 1957. After Section 497 was repealed, military tribunals would henceforth penalize officers under these sections.[ii]

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

Article 33

• It covers Parliament's ability to change the rights given by Part III in their application, and so on.
• By law, Parliament may determine to what degree any of the rights granted by this Part should apply to:
  
  1. Armed Forces personnel
  2. Personnel of the armed forces tasked with maintaining public order; or
  3. Employees of any intelligence or counterintelligence bureau or other organization established by the state;
  4. people engaged in, or in connection with, telecommunication networks set up for the purposes of any Force, bureau, or organization mentioned in paragraphs (a) to (c), be restricted or abrogated in order to guarantee proper fulfillment of their responsibilities and the preservation of discipline among them.[iii]

The Judgment
Attorney General K K Venugopal said:
When Jawans and officers are stationed at forward areas, they should not be concerned about their families' safety, and they should not be disturbed by the possibility that someone may engage in an adulterous connection with their family members, if adultery is decriminalized. That is why adultery should be classified as unbecoming conduct under the army, navy, and air force acts. In addition, if a man or woman in uniform is found guilty of adultery, the laws will apply to both men and women in uniform.[iv]

The bench, led by Justice Nariman, agreed with Justice Venugopal and by quoting article 33, concluded that adultery may continue to be an offence under the armed forces' 'unbecoming act' clause.

Conclusion
The military is unlike any other branch of service. For example, several fundamental rights established in the Constitution do not apply to them, like men in uniform is unable to join a political party while on active duty, the inability to create unions, and restrictions on freedom of expression. That is why drawing the same analogy; the military should be exempted from the repeal of Section 497.

It's important to realize that armed personnel operate in a completely different environment than civilians. Honor is a virtue of service. The unwritten contract that governs members of the armed services includes courage and dedication to duty, even at the cost of one's life.

Therefore, acts of promiscuity or adultery by persons subject to the army act, navy act, or air force act would still be offences for which criminal or disciplinary action could be taken under army act section 63 or section 45, and corresponding provisions of navy act and air force act, respectively, on the basis that these are acts of misconduct.

A pleasant home life for a fighting soldier is part of the total asset of a military service and increases the combat effectiveness of the organization. Hence, adultery should continue to be offence in the armed forces.

End-Notes:

1. https://indianexpress.com/article/india/supreme-court-issues-notice-on-centres-request-to-keep-adultery-a-crime-in-armed-forces-7144618/
2. https://www.hindustantimes.com/india-news/even-woman-officers-want-adultery-law-in-army-101610657198828.html
3. Article 33 of the Indian constitution
4. https://timesofindia.indiatimes.com/india/adultery-should-continue-to-be-offence-in-armed-forces-centre-tells-sc/articleshow/80260232.cms