Adultery in the Indian Army: Supreme Court’s Decriminalisation Verdict Meets Military Discipline as Major Faces Dismissal Proceedings
The legal distinction between adultery as a private relationship matter and adultery as military misconduct has returned to the spotlight after an Indian Army Major was issued a show-cause notice proposing his dismissal over allegations of extramarital affairs involving multiple women, including the wives of fellow officers. The case highlights a continuing legal question: why conduct that is no longer a criminal offence for civilians can still lead to disciplinary action within the armed forces.
According to a report published by The Indian Express on October 20, the officer has challenged the administrative termination proceedings before the Armed Forces Tribunal in New Delhi. The notice reportedly states that a court-martial is considered inexpedient in the circumstances. The matter involves allegations and procedural challenges, and the notice itself should not be treated as a final finding of guilt.
The proceedings originated from a complaint filed in August 2023, following which the Army conducted inquiries into allegations of extramarital relationships and conduct considered unbecoming of an officer. The officer has reportedly questioned the legality and fairness of the proceedings, including the effect of the withdrawal of the original complaint following a mutual divorce in March 2026. The case brings renewed attention to the relationship between personal liberty, military discipline and procedural safeguards.
The Joseph Shine Judgment: Adultery Decriminalised in 2018
On September 27, 2018, a five-judge Constitution Bench of the Supreme Court of India delivered its landmark judgment in Joseph Shine v. Union of India, striking down Section 497 of the Indian Penal Code, 1860, as unconstitutional. The provision had criminalised certain sexual relationships involving a married woman and a man other than her husband, while denying women equivalent rights to prosecute their spouses for adultery.
The Court held that the provision violated constitutional guarantees of equality, non-discrimination and personal liberty under Articles 14, 15 and 21. Its reasoning challenged the patriarchal assumption that a married woman’s sexuality was subject to her husband’s control. The ruling removed adultery as a criminal offence under Section 497, although it did not declare extramarital relationships morally acceptable or eliminate every legal consequence associated with adultery.
The judgment established an important distinction between criminal punishment and civil consequences. Adultery can still be relevant to matrimonial proceedings, including divorce, under applicable personal laws. The ruling, however, raised a separate question about whether the same conduct could attract disciplinary punishment under the special statutes governing the armed forces.
Why the Indian Army Follows a Different Legal Framework
The Indian Army operates under a statutory system designed to maintain discipline, operational effectiveness and professional standards. The Army Act, 1950, and the Army Rules, 1954, establish mechanisms for dealing with misconduct by personnel subject to military law. These provisions operate alongside the Constitution and the general criminal law.
Article 33 of the Constitution authorises Parliament to determine the extent to which fundamental rights may be restricted or modified in their application to members of the armed forces and certain other services. The constitutional objective is to ensure the proper discharge of duties and the maintenance of discipline. This framework explains why a ruling that decriminalised adultery for civilians did not automatically resolve the question of disciplinary action against military personnel.
For the Army, the central issue is not simply whether an extramarital relationship constitutes a crime under ordinary criminal law. It is whether the circumstances and conduct of a serving individual fall within the statutory standards of professional behaviour, military discipline and conduct expected from a member of the service.
Section 45 of the Army Act: Conduct Unbecoming of an Officer
Section 45 of the Army Act, 1950, deals with conduct unbecoming of an officer, junior commissioned officer or warrant officer. It provides for punishment following conviction by a court-martial where the relevant conduct falls within the provision.
In cases involving alleged extramarital relationships, the Army may examine whether the circumstances amount to conduct incompatible with the position and character expected of an officer. The assessment can involve the surrounding facts, the officer’s professional responsibilities and the alleged impact on the service environment.
The provision does not mean that every allegation of infidelity automatically establishes misconduct. The relevant authorities must consider the evidence, applicable legal standards and procedural requirements. The legal question is whether the alleged behaviour falls within the scope of the statutory provision, rather than whether the relationship is objectionable solely on moral grounds.
Section 63: Violation of Good Order and Military Discipline
Section 63 of the Army Act addresses acts or omissions that, although not specifically identified as separate offences under the Act, are prejudicial to good order and military discipline. A person subject to the Act may, upon conviction by a court-martial, face imprisonment of up to seven years or a lesser punishment provided under the legislation.
This provision is particularly significant in debates over adultery within the armed forces. Military authorities may examine whether an alleged relationship has implications for unit cohesion, professional trust, superior-subordinate relationships or the orderly functioning of the service.
However, Section 63 is not a blanket declaration that all private consensual relationships constitute military offences. Its application depends on the circumstances and the legal assessment of whether the alleged conduct is prejudicial to good order and discipline. The distinction between private behaviour and service-related misconduct remains central to the issue.
Supreme Court Clarification in 2023: Military Discipline Remains a Separate Question
The Supreme Court revisited the relationship between the Joseph Shine judgment and military law in proceedings concerning a clarification sought by the Union government. On March 31, 2023, the Court made clear that its 2018 decision had not determined the effect of Sections 45 and 63 of the Army Act or corresponding provisions of the Air Force and Navy legislation.
The Court explained that the earlier judgment had dealt with the constitutionality of Section 497 of the IPC and had not ruled on the operation of the separate military statutes. It also observed that the decriminalisation of adultery did not amount to judicial approval of adultery, which could remain a moral wrong and a civil wrong with consequences in matrimonial proceedings.
The clarification preserved the distinction between criminal prosecution under the former adultery provision and disciplinary action under military legislation. It did not create a new adultery offence under the Army Act; rather, it left the application of the existing service-law provisions to the relevant authorities and courts.
Section 497 of the IPC and the New Criminal Laws
Section 497 of the Indian Penal Code historically prescribed punishment for a narrowly defined form of adultery. The offence was gender-asymmetric: it criminalised the conduct of a man who had sexual intercourse with another man’s wife under specified conditions, while treating the husband’s consent as legally significant and excluding equivalent criminal liability for the wife.
After the Supreme Court struck down the provision in 2018, adultery ceased to be a criminal offence under that section. The subsequent introduction of the Bharatiya Nyaya Sanhita, 2023, which came into force on July 1, 2024, did not restore the former adultery offence. The new criminal code does not contain a general offence of adultery equivalent to the invalidated Section 497.
This change is important when interpreting current legal disputes. For civilians, consensual extramarital relationships do not become criminal merely because they constitute adultery. Other conduct associated with a relationship may still attract criminal liability if it independently satisfies the elements of a separate offence.
For military personnel, the absence of adultery from the general criminal code does not by itself prevent proceedings under the Army Act. The legal basis, purpose and procedure of any such action must instead be examined under the relevant service legislation and applicable constitutional principles.
Administrative Dismissal and Court-Martial: Two Different Routes
The recent Army Major case also highlights the distinction between a court-martial and administrative termination. A court-martial is a formal military trial under the Army Act, through which charges are adjudicated and statutory punishments may be imposed following conviction.
Administrative termination follows a different legal route. Under the Army Act and applicable Army Rules, an officer’s service may be terminated in specified circumstances through an administrative process, including where the competent authority considers a court-martial inexpedient or impracticable and the statutory conditions are satisfied. The process is subject to applicable safeguards and opportunities for the officer to respond.
A show-cause notice is not equivalent to a final dismissal order. It provides an opportunity to contest the proposed action, and the officer may raise issues concerning evidence, procedural compliance and the legality of the decision. Disputes over service-related administrative decisions may be brought before the Armed Forces Tribunal within its jurisdiction.
The outcome of the reported case will therefore depend not simply on the existence of allegations, but also on the applicable legal provisions, the evidence considered and the procedural requirements governing the proposed action.
Personal Liberty Versus Military Discipline
The continuing debate raises a broader constitutional question about the limits of personal liberty within a disciplined force. Critics of disciplinary action based on consensual relationships may argue that decriminalisation should protect private life from excessive state interference. Military authorities, meanwhile, maintain that serving personnel are subject to professional obligations that can justify restrictions beyond those applicable to civilians.
The distinction requires a careful examination of the relationship between private conduct and legitimate service interests. Military discipline is a recognised constitutional objective, but the existence of special service legislation does not eliminate the need for lawful authority, relevant evidence and fair procedure.
The question is also gender-neutral in principle. Military standards must be applied according to the governing law and the facts of each case, rather than assumptions that place unequal moral burdens on men and women. Allegations should be assessed through established procedures, with appropriate protection for the rights and reputations of all parties involved.
A Continuing Legal Debate
The latest proceedings demonstrate that the decriminalisation of adultery has not ended legal disputes concerning extramarital relationships. Instead, it has sharpened the distinction between criminal law, matrimonial consequences and the special disciplinary framework applicable to military personnel.
The Supreme Court’s decisions in Joseph Shine and the subsequent clarification concerning the armed forces remain central to understanding that distinction. Section 497 of the IPC no longer operates as a general criminal prohibition on adultery, and the Bharatiya Nyaya Sanhita has not reinstated it. Sections 45 and 63 of the Army Act, however, remain relevant where the alleged conduct is examined as a matter of military discipline.
As the Armed Forces Tribunal considers challenges to the administrative proceedings against the Army Major, the case places the practical operation of these principles under scrutiny. The broader legal issue is how the armed forces can enforce professional standards while respecting constitutional protections, ensuring procedural fairness and distinguishing substantiated misconduct from allegations about private relationships.
Disclaimer: This article provides general legal information and is not a substitute for advice from a qualified lawyer on an individual military disciplinary or matrimonial matter.
