What TV doesn't, print can't; we deliver.
What TV doesn't, print can't; we deliver.
The overall approach of the services towards the wrongs of adultery and extra-marital affairs, and failed marriages assumes that the spouse having an extra-marital affair is incapable of thinking of their own best interest.
Colonel Nishit Khanna of the Indian Army’s Surya Command died by suicide a few days back. The news evoked a very strong reaction from veterans and others about the puritanical culture in the armed forces. According to the information available in the public domain, the 43-year-old officer was pushed to the wall. His wife made an application to the authority concerned in the Army, alleging an extra-marital affair. It is learnt that first, he was referred to psychiatric treatment by the Army and then a Court of Inquiry (CoI) was held in which he was absolved. However, the entire persecution broke him so much that he died by hanging himself.
This raises serious questions about the manner the Army meddles in the marital and private life of its personnel. There are many such instances of troops being subjected to professional detriments and humiliation by forces peeping into their private life, in which they may be suffering gravely. Many personnel have narrated the agony they are subjected to in the defence services. This article is restricted to the provisions concerning the extra-professional conduct of personnel in the Army Act 1950.
Prurient provisions of the Army Act, 1950: Sections 45, 63 and 91 of the Act are the peculiar provisions that are misused by the wives to curtail the rights available to personnel under civil law. Divorce is a remedy available to all citizens of India as per Section 13 of the Hindu Marriage Act, 1955, but forces almost make it impossible for the personnel to avail this right in instances where marriages go wrong. The above-mentioned three provisions of the Act are used to arm-twist them in their extra-professional life, to settle scores, to destroy their Annual Confidential Report and to virtually deny them the right of divorce; and they continue to suffer in unhappy marriages owing to the fear of risking their career should they opt to seek divorce. This is taking a toll on their mental and emotional stability. It’s important to reproduce these sections herein to understand their vagueness, vastness and misuse.
Section 45 (unbecoming conduct): Any officer, junior commissioned officer (JCO) 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. Under this provision, a JCO or a warrant officer is liable to be dismissed.
Section 63 (violation of good order and discipline): Any 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, and shall, on conviction by court-martial, be liable to imprisonment for a term up to seven years.
Section 45 is vaguely worded and can subsume anything. Allegations of adultery and extra-marital affair are charged under this provision read with Section 63. By convention, adultery under this section is defined as: ‘stealing the affection of a brother officer’s wife’ or ‘stealing the affection of a sister officer’s husband’.
In all its wisdom, the Supreme Court in the 2018 Joseph Shine judgment struck down the section of adultery from the Indian Penal Code (IPC) which anyway was very different from the definition of adultery in the forces. The position of civil law now is that adultery is a civil wrong and is one of the grounds for divorce, but it has no penal consequences.
However, it remains to be seen how the forces are dealing with charges of adultery in light of the clarification sought by the Army in the Joseph Shine judgment wherein counter to its premise that adultery can lead to indiscipline in the forces, the top court said: “After our judgment, adultery does not carry criminality but it remains immoral. It does not mean that adultery is not misconduct.”
This means there can’t be a penal punishment in matters of adultery but disciplinary action can be taken on this ground. But the case of Colonel Khanna raises very serious questions on the manner in which such “misconducts” are dealt with in armed forces. The Army must shed puritanical control on its personnel’s private life, look sympathetically to their “alternate life experiences” and stop spoiling their Annual Confidential Reports for their private life.
Section 63 is omnibus and an Army man can be charged under this for anything and everything as evident from the language itself: “…guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline.”
As a veteran says, “Section 63 of the Army Act is like a horizon, it is endless. You can keep going on by adding the sky.” Section 63 is such an open-ended provision that there may be instances wherein personnel are penalised for a misdemeanour which might not have looked an offence to them at the time of its commission but may be an offence in the stretch of imagination of the officer sitting in their judgment – resulting in victimising his Annual Confidential Report.
Article 20 of the Constitution says, “No one can be convicted for an act that was not an offence at the time of commission…” Hence, if challenged, Section 63 of the Army Act may be held unconstitutional by the Supreme Court.
Section 90 (deductions from pay and allowances of officers): This provision authorises the Central government or any prescribed officer to order a deduction of a sum from the pay and allowance of an officer towards “the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said government to the said wife or child”.
Personnel often complain that their rights are abrogated by the forces in marital disputes and Army wives misuse this provision to keep them in toxic marriages for the sake of using them as “ATM machines” and for “vindictiveness”.
In the Major Amit Kumar Mishra vs Union of India judgement, the Chandigarh-based Armed Forces Tribunal (AFT) in 2018 ruled out the malpractice of this section and said: “It is, thus, clear that the authorities under the Act have no jurisdiction to adjudicate a claim for maintenance. This view is fortified by the fact that the Act and the Rules do not provide any mechanism and procedure for adjudication of claims of maintenance.” It quoted an excerpt from ‘Raksha Mantri’s Committee of Experts’ Report-2015 in support: “We agree with the Army HQ that requests for grant of maintenance of marital and family disputes are essentially civil and private in nature and should be ordinarily dealt with by civil courts and statutory authorities under specific laws meant for the said purpose. The defence services do not have the wherewithal, capacity or ability to check the veracity of allegations and counter-allegations in such disputes which are essentially based upon an appreciation of evidence, a role that cannot be performed by the defence services but only by competent civil courts.”
Personnel grieve that the 2018 AFT judgment is being overlooked by the forces that are still making deductions from the pay on the application of the wife to the authority concerned without a civil court order to that effect. This is illegal.
This article doesn’t dismiss the wrongs of adultery, extra-marital affairs and the pain of divorce, but intends to deal with the subjective nature of the wrongs and failed marriages. The overall approach of the forces towards these wrongs assumes that the spouse having extra-marital affair is incapable of thinking of his/her own best interest. That’s ludicrous.
Law is legislated on the template of a “reasonable man”. It’s not a just practice to bracket all extra-marital relationships within these wrongs. Moreover, there’s no necessary wedlock between law and morality. Human relationships are very complex and labelling a romantic relationship outside marriage as adultery or an extra-marital affair is nothing but mental and emotional poverty.
When there’s an irretrievable breakdown in a marriage, as a natural human-behavioural reaction, the aggrieved spouse looks for another marriage or a psychological shrink outside and the other spouse labels his/her extra-marital relationship as adultery for their own vested interest. There may be some cases of wanton affairs, but then we can’t dismiss the fact that people have meaningful, mature relationships outside the marriage for which they would have their own reasons and had their divorce been made easier, they would have married again.
In his famous novel Anna Karenina, Leo Tolstoy says: “All happy families are alike, but every unhappy family is unhappy in its own way. It’s mental deprivation to sit on judgment where marriages fail and spouses deviate.”
By nature, everyone likes stability, but where people have alternate life experiences, they deviate. That’s why the legislature incorporated the provision of divorce in 1955 in all its wisdom. Instead of pushing back people into unhappy marriages, the law must facilitate a dignified and speedy exit at the instance of the aggrieved spouse, but the current practice is to persecute the aggrieved more by discouraging, delaying and denying divorce. Failed marriages help none. These make the whole family atmosphere more toxic and mentally neurotic.
Personnel narrate instances wherein they don’t take leaves to avoid going home. Colonel Nishit Khanna is learnt to have lived in a room in the Army mess, away from his official bungalow. Sad, nobody discovered his aloofness and loneliness. Remember, the law can only save a marriage, but there’s no provision which can fill love and care in the marriage. The legislative imitated the concept of divorce from the West in 1955, but the system has miserably failed to deliver as it did in the West.
(Writer is practising at Supreme Court.)
