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Polity & Governance
Mahesh

15/02/25 09:16 AM IST

Divorce, maintenance and punishment in armed forces

In News
  • The Madhya Pradesh High Court recently ruled that evidence of sexual intercourse was necessary to prove adultery as a ground for cancellation of maintenance.
Adultery
  • Section 497 of the Indian Penal Code, 1860 (IPC), recognised the crime of adultery and provides the accompanying punishment.
  • It defined adultery as “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”.
  • There are two key points to consider here. First, under Section 497 only a man could be prosecuted and punished for committing the crime of adultery.
  • Second, for someone to be punished for adultery he must have had sexual intercourse with another man’s wife, without that man’s consent. It was punishable with up to five years imprisonment and a fine.
  • The Bharatiya Nyaya Sanhita (BNS), which came into effect on July 1, 2024, does not mention adultery as it was decriminalised by the apex court.
Not a Criminal offence
  • In 2018, a five-judge Constitution bench unanimously ruled that Section 497 was unconstitutional.
  • The court held that the provision was discriminatory towards women and treated them as subordinate to their husbands “inasmuch as it lays down that when there is connivance or consent of the man, there is no offence”.
  • As a result, the SC held that “this treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master”.
  • For similar reasons, the SC also struck down Section 198 of the Criminal Procedure Code, 1973, which only allowed the aggrieved husband or “some person who had care of the woman on his behalf at the time” to file a complaint under Section 497.
  • However, the SC clarified that adultery would remain a moral wrong and could be invoked as a ground in civil proceedings
  • As the SC clarified, adultery remains a ground for relief in civil cases such as divorce proceedings.
  • Under both the Hindu Marriage Act, 1955 (HMA), and the Special Marriage Act, 1954 (SMA), one of the grounds for divorce is if the husband or wife “has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”.
  • Though it is not explicitly called adultery under the provisions for divorce (Section 13 of the HMA and Section 27 of the SMA), it is referred to as adultery in later provisions.
  • Both laws contain provisions empowering the other party to counter-sue in divorce proceedings on the grounds of “adultery”.
  • Courts have also ruled that proof of sexual intercourse is necessary to invoke adultery as a ground for divorce.
Exceptions
  • In 2023, an application was filed in the Joseph Shine case seeking clarity on how the judgment would apply to the armed forces.
  • The Centre argued that the Army, Navy, and Air Force were a “distinct class” under Article 33 of the Constitution, which allows Parliament to pass laws to determine “to what extent” fundamental rights will apply to members of the armed forces.
  • The Centre argued that the armed forces should be governed by the relevant laws — the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950.
  • These laws provide punishments with the possibility of imprisonment for “unbecoming conduct” and violations of “good order and discipline” which would include “promiscuous or adulterous acts”.
  • The SC allowed the Centre’s arguments, stating that the ruling was “not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us”.
  • Effectively, adultery is still a punishable offence for members of the armed forces.
Source- Indian Express

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