Even woman officers want adultery law in army
As the ministry of defence presses its case in the top court on the importance of retaining the criminality of adultery in the armed forces — the apex court decriminalised it in 2018 — it emerges that, at least in some cases, what’s sauce for the goose may not be sauce for the gander.
Hindustan Times has accessed two written accounts from women officers who complained about their husbands’ affairs with other enlisted women, but had to eventually withdraw their complaints.
The defence ministry’s application before the court emphasised that the army didn’t discriminate between male and female officers, and punished them for “unbecoming conduct” regardless of gender, but the two women and a cross-section of defence counsellors and lawyers admitted that, perhaps inadvertently, women officers may not have received the traditional support that was provided by commanding officers or their wives.
The armed forces see adultery — “stealing the affections of a brother officer’s wife” — as an offence that is just a notch below the worst offence enlisted personnel can be accused of, cowardice. The provision to deal with this, drawn from section 497 of the Indian Penal Code, exists in all three services, and the punishment is usually dismissal. Section 45 (conduct unbecoming) or section 63 (violation of good order and discipline) are both offences that are gender-neutral and hence applicable to both men and women in the military.
Section 497 of the IPC didn’t enable women to press charges against their husbands in case of adultery. Proceedings could only be started by men and it was only men who could be punished under the law. But under military law, a woman officer can complain if she suspects her husband of having a relationship with another woman officer.
Just as attorney general KK Venugopal pointed out how decriminalisation can cause “instability” for personnel posted in border or far-flung locations, the two cases accessed by HT are both of women army officers who were posted in Kashmir. As they are both serving officers, they requested that their identities not be disclosed.
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The first case dates back to 2018, when one of the woman officers and her two children were posted in a different location from her husband of 14 years. Her husband ended up having an affair with a single, much younger woman officer who was posted along with him. In her statement, the wife said her husband felt she was too busy with her own life when in reality, she was trying to juggle a full-time job and two children, aged 12 and 10.
The woman officer said “the organisation acted blind in our case”. “No action was taken against them and that made both of them even more courageous,” she wrote. Two years later, she divorced her husband but she claims this was well after she was forced to withdraw her complaint after other officers refused to testify about the affair.
“He was a commanding officer of a unit; no one wanted to object to him. A wife will always be under mental pressure but is it OK for organisation to let such an officer serve?” she asked. Her counsellor, who is associated with the forces (and who is not authorised to speak to the media), told HT that this was a problem specific to women officers. “Wives of officers can always complain to their commanding officer’s wife who then asks the CO to put pressure on the cheating husband.They use various means to help the couple reconcile.’’
“As far as law is concerned, it equally applies to both. Practical realities may vary per various factors. But it’ll be hypothetical to comment unless any such situation is laid in front of us,” said Major Navdeep Singh, advocate, Punjab & Haryana high court, who served in the Territorial Army.
The second case refers to two officers who separated two years ago and have a young son. The husband was posted in Jammu & Kashmir and had an affair with a medical officer when his wife was pregnant. In her complaint, the officer writes about the husband not visiting her after the baby was born and being inaccessible on the phone. The commanding officer finally convinced him to visit but things only got worse. Finally, the woman officer filed a complaint with the local police and the army, but said she was forced to withdraw that too.
“There is a clear policy in place and the act is the same for both men and women, but it is twisted and manipulated in the case of women officers. Senior officers choose to react selectively and promote out-of-court settlement rather than a departmental enquiry,” said the first woman complainant.
While an army spokesperson declined to comment, an officer said on condition of anonymity that in some cases, women officers have been reluctant to seek a superior officer’s intervention. “I have called in male officers and their wives and do the same for women officers too,” he said.
Additional solicitor general Madhavi Divan, who argued the defence ministry’s case in court, said: “I can only say that the armed forces require their own code of conduct in order to maintain discipline in the forces. The judgment striking down adultery is being applied to quash disciplinary proceedings in some cases. The provisions of the statutes which govern the armed forces permit disciplinary action in a manner different from the civilian population. That should be left intact and untouched.’’
Lawyer Chitrangada Rastravara pointed out that there were several actions which did not constitute an offence under the penal laws of India, but are punishable offences under the Army Act. “For example, desertion has no consequences under penal law; however it is a very serious offence, punishable by death, under military law,” she said.