Criminalising “Stealing the Affection of a Brother Officer’s Wife”: A Comparative Analysis with reference to the USA and South Africa

By- Digvijay Sahni


Decriminalising adultery and viewing it from outside the realm of criminal jurisprudence, was one of the landmark judgments that was rendered by the Supreme Court in 2018. The abrogation of the long-standing English provision in the IPC 1860 was seen as a step in the positive direction for which civil remedy of divorce was made available[i]. One of the consensuses that were reached at by the judges and which appears from the critical appraisal of the judgement is that §497 was against the essence of constitutional provisions and violated the broad fundamental rights[ii] which are considered as a part of the basic structure of the Indian Constitution. However, the apex court has been confronted with an interesting issue where a plea has been raised to cave out an exception in 2018 ruling and criminalise §497 IPC in the armed forces.

Necessity for exception and the principle of “legislative classification”

Article 14 empowers the State to give equal protection of the law and embodies the principle that like should be treated alike and that unlike should not be treated alike. The underlying idea behind the principle of equality is not the uniformity of treatment to all in all respects; rather give them the same treatment in those respects in which they are similar and different treatment in those respects in which they are different. Therefore, to ensure that legislative classification rests on real and substantial distinction, a twofold condition, namely: (1) that the classification ought to be based on some intelligible differentia distinguishing persons grouped together, and (2) that such differentia must have a rational relation to the object sought to be achieved by the statute, was crafted to test its validity.

It is undoubtedly true that the defence personnel operate in those circumstances and conditions which are peculiar, thereby, being classified as cadre which is entirely distinct than the civilians, as they are entrusted with the tasks of guarding the frontiers of the nation, neutralising any enemy attack, carrying out real-time combat operations, preserving the sovereign character and national independence, etc. Honour, courage, and devotion to duty to the extent of risking one’s own life, is a part of the unwritten contract and sine qua non, which places them at a higher pedestal as compared to their counterparts in the civil services. Further, the standard of discipline, and moral conduct, is exceptionally higher and hence, an exception in favour of the armed forces to treat adultery more than a mere ground of seeking the civil remedy of divorce must be put in place. Thus, retaining adultery as a criminal offence on these grounds appears to be in tune with the nexus sought to be achieved by the respective statutes pertaining to the conduct of defence personnel, and fulfils the principle of legislative classification.

Rationale behind criminalising Adultery in Armed Forces

Valour and devotion to duty are the bedrocks on which the armed forces command respect from the masses .As due importance is attested to one’s duty, it becomes quite-essential that the armed forces personnel bear mental satisfaction and inspire confidence that there is no chance of their family members to engage in any untoward activities. It is only when there are apt and proper rules enforced in place, that they would be able to focus on their jobs and not be worried about their family’s welfare.

Article 33 of the Constitution which enables the Parliament to enact laws for armed forces, and defence personnel being a distinct class, must be subjected to the provisions of §45 or §63 of the Army Act, 1950, §45 or §65 of the Air Force Act, 1950, and §54(2) or §74 of the Navy Act, 1957, if any person commissioned in either of such services is found to be indulged in adulterous conduct. The offence of adultery in the armed forces is described as “stealing the affection of a brother officer’s wife” and is considered a notch below an act of cowardice. The high moral standards attached to the armed forces could be seen from the stance that even an act of abandoning one’s duty and not retaliating despite being armed with lethal weapons is very much regarded as an act of cowardice and unbecoming conduct, for which death is one of the punishments which can be awarded to such personnel. Hence, criminalising adultery which is unbecoming conduct doesn’t reflect any patriarchal mindset as decriminalising such promiscuous conduct brings discredit upon the armed forces. Though there is no explicit mention of the offence of adultery and the respective Acts only penalise unbecoming conduct of the personnel, there have been several instances where the court-martials have viewed the offence as one of unbecoming conduct and inflicted punishment thereto.

To ensure that the interpersonal relationship of the partners remain intact and the discipline and morale of the defence personnel are not prejudicially affected, it could be said that creating an express statutory exemption in favour of the personnel won’t have any detrimental impact, as the court-martials have upheld the convictions of personnel indulging in such promiscuous conduct. 

Position in other Nations

The United States of America is one of the nations that have criminalised the offence of adultery which has been incorporated under Article 134 (¶62) of Manual for Courts-Martial (MCM). For constituting the offence under the said provision, three essential ingredients have to be satisfied, firstly, wrongful sexual intercourse with another person, secondly, the accused was previously married to some other person, and thirdly, such conduct had a grievous impact on the repute of the armed forces and is likely to discredit in the eyes of the public at large. The MCM punishes any conduct which is against the principles of good order and discipline, thereby, bringing shame and infamy towards the armed forces, in the States; adultery being one of such conducts, which is notorious and injures the repute of the armed forces, has been expressly provided and punished in the Uniform Code of Military Justice (UCMJ).

An analogous provision exists in South Africa where the offence of adultery (when committed by armed forces) has been penalised. The spectrum of such penalisation has been made inclusive to cover both the possibilities; firstly, the establishment of consensual sexual relations by defence personnel with any member of the local population as per §63(1) and (3), and secondly, indulging in unseemly behaviour by engaging in fraternisation[iii]with the spouse of any member as per §45 Schedule 1 of the Military Discipline Bill. Both these conducts violate good order and are considered prejudicial to the military discipline and therefore, have been made punishable under Schedule 1, with a term of imprisonment ranging from 10 years to 30 years.

Concluding Remarks

Armed forces form a distinct class and decriminalising adultery would not do any good, rather would only lead to the defeat of justice, if an explicit provision for criminalisation is not carved out. Though the boundaries of the terms “unbecoming conduct and prejudicial to good order and discipline” could be stretched to any possible extent, making promiscuous conduct an offence, is a welcome step which even female officers approve of.  Convictions under the military law for the offence of adultery have been going on for a considerable amount of time. Thus, a demand to criminalize the offence and carve out an exception for armed forces was a pertinent question which came up before the apex court through an application moved by the Centre. The military code of the nations of the USA and South Africa contain a separate provision which criminalize the offence of adultery if committed by the members of armed forces. The fact that there have been several convictions for the offence under “unbecoming conduct”, and that carving it out as a separate offence would be redundant; the apex court’s reliance on the respective military codes of these 2 nations could come as an aid.

[i] Treating adultery as a criminal offence would amount to un-necessary intervention of the state in the private arena of the matrimonial parties and would violate the two facets attached to Article 21; firstly, the dignity attached to the husband and wife, and secondly, the privacy attached to their relationship.

[ii] §497 treats a married woman as a chattel of the husband and empowers him to deal with her in a manner he likes. Further, it doesn’t treat woman as an abettor (instead protects her), and at the same time doesn’t enable the wife to initiate criminal prosecution against the husband. The law in such a case creates a distinction by protecting one woman and depriving the other of a crucial right thereby, being arbitrary and violating Article 14.

Article 15(3) of the Constitution is a beneficial legislation which embodies the principle of protective discrimination. In exempting the wife to initiate criminal prosecution against the husband, it reflects that a woman has no sexual agency and that she was forced into sexual relationship. Article 15(3) is intended to bring out substantive equality of which dignity and autonomy are crucial components. Thus, law of adultery which bases its foundations on the paternalistic and patriarchal notions can’t claim protection under the said Article.

Article 21 of the Constitution also includes the right to live with dignity and entitles a human to choose his/her sex/gender. §497 intends to create gender stereotypes and curtail a woman’s sexuality, by subjugating her and treating her inferior to her husband.

[iii]Though fraternisation is not explicitly mentioned in the Military Discipline Bill, it is defined as an intimate relationship which doesn’t necessarily imply a sexual relationship. Wrongful fraternisation has been made an offence as it is considered prejudicial to good order and discipline in the armed forces. As rightly pointed out in the case of United States vs Free, 14 CMR 466 (NBR 1953), each case of wrongful fraternisation has to be adjudged on the facts and circumstances and there is no rigid formula prescribed to define what would constitute fraternisation.

[The article is written by Digvijay Sahni, a second-year student at National Law University Mumbai.]


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