Extramarital Affairs and Adultery in the Armed Forces:

A Legal, Disciplinary, and Constitutional Perspective

ByCol Amit Kumar (Veteran)Judge Advocate General’s Department

Introduction

The Armed Forces are not merely an employer; they are an institution founded on discipline, trust, cohesion, and moral authority. Conduct of soldiers both on and off duty has always been judged against a higher benchmark than that applicable to civilians.

In recent years, the decriminalisation of adultery by the Hon’ble Supreme Court has triggered confusion, inconsistent action, and unnecessary litigation within the Armed Forces. Matters that could and should have been resolved within the framework of military law and discipline have instead been escalated to constitutional courts often without clarity, consistency, or legal sustainability.

This article seeks to examine the issue not from a moralistic lens, but from a legal, constitutional, and disciplinary standpoint, and proposes a lawful and institutionally sound way forward.

Ethos of the Armed Forces and Moral Conduct

Extramarital affairs and sexual impropriety are inconsistent with the ethos, customs, and traditions of the Armed Forces. They corrode:

• Unit cohesion

• Trust between comrades

• Command climate

• Moral authority of leadership

However, immorality alone is not a crime—especially after adultery has been decriminalised. The Armed Forces must therefore be careful not to replace criminal law with subjective morality, but also not to tolerate conduct that undermines discipline.

The challenge lies in balancing constitutional liberty with military discipline, strictly within the four corners of law.

Why the Issue Reached the Supreme Court Unnecessarily

The matter of adultery was taken to the Supreme Court largely because:

• There was no clear post-decriminalisation policy for the Armed Forces.

• Existing provisions were stretched beyond their legal intent.

• Disciplinary action was initiated without legislative clarity, exposing decisions to judicial scrutiny.

This could have been avoided. Military law already provides sufficient internal mechanisms, if applied correctly and lawfully.

Existing Legal Framework under the Army Act

1. Punitive Route – Section 63 (Army Act)

Section 63 (“Acts prejudicial to good order and military discipline”) provides for punishment up to 7 years’ imprisonment.

However:

• Section 63 cannot be used mechanically.

• It requires proof that the act is directly prejudicial to discipline, not merely immoral.

• Purely private consensual relationships without demonstrable service impact are difficult often impossible to prove under this section.

Using Section 63 for adultery invites legal infirmity, especially post-decriminalisation.

2. Administrative Route – Sections 18, 19, and 20 (Army Act)

A legally safer and institutionally sound approach lies in administrative termination of service under:

• Section 18 – Termination of commission by the President 

• Section 19 – Termination by Central Government

• Section 20 – Termination by Chief of the Army Staff

Where:

• Conduct is unbecoming,

• Trial is impracticable,

• Continuance is undesirable in the interest of discipline,

Administrative termination, after due process, is legally sustainable and avoids criminalisation of private conduct.

Need for a Clear COAS Order

An Army Order issued by the Chief of the Army Staff can:

• Clearly define sexual misconduct and unbecoming conduct (not adultery per se),

• Lay down procedural safeguards,

• Specify circumstances where Section 63 may apply, and

• Prefer administrative action where proof is evidentiary weak but conduct is institutionally corrosive.

Such an order would restore uniformity, predictability, and legality.

Legislative Option: Amendment under Article 33

If the Government wishes to explicitly regulate such conduct, the only constitutionally valid route is:

• A law under Article 33 of the Constitution, read with Article 246, and

• Amendment of relevant provisions such as Sections 45, 46, or 63 of the Army Act.

This would require:

• Parliamentary debate,

• Safeguards against misuse,

• Clarity distinguishing affection, relationship, misconduct, and service prejudice.

Notably, Section 193A of the Army Act mandates that such rules be laid before Parliament yet there has been no comprehensive discussion on this sensitive issue.

Why Criminalisation Is Neither Practical Nor Just

There are serious concerns:

1. Who Decides the Existence of an “Affair”?

• Affection, communication, proximity these are subjective.

• Without clear standards, decisions become arbitrary.

2. When Does Conduct Become Misconduct?

• Soldiers are human beings.

• Personal relationships do not automatically translate into service misconduct.

3. Proof Beyond Presumption

• Sexual misconduct must be established by evidence, not suspicion, gossip, or vendetta.

• Presumptive proceedings damage careers irreversibly even if allegations fail.

Therefore, sexual misconduct should be proceeded against only when it demonstrably affects discipline, command authority, or service environment.

Impracticability of Trial

Many such cases are impracticable to try because:

• Evidence is circumstantial,

• Witnesses are reluctant,

• Privacy concerns override evidentiary thresholds.

In such situations, administrative termination, after due process, is the most legally defensible route.

Proposed Way Forward

1. Pending proved cases may be resolved through administrative termination, not criminal punishment.

2. The organisation must not accept such conduct, but must deal with it strictly under law, not moral outrage.

3. Avoid misuse in matrimonial disputes or personal vendetta-driven complaints.

4. If the Government desires criminal consequences, legislate explicitly under Article 33.

5. Till then, rely on Sections 18–20, not stretched interpretations of Sections 45 or 63.

Conclusion

Discipline is the backbone of the Armed Forces but discipline without law is tyranny, and law without discipline is anarchy.

The Armed Forces need disciplined soldiers irrespective of gender, but also fair, transparent, and constitutional processes. Extramarital affairs may be morally objectionable, but the response must be legal, proportionate, and institutionally sound.

The solution does not lie in judicial adventurism or moral policing but in clear policy, lawful authority, and disciplined administration.

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Author: 

Colonel Amit Kumar (Retd.)

Former Officer – Infantry & Judge Advocate General’s Branch, Indian Army

Advocate | Author | TEDx Speaker | Motivational Speaker | Military Law Expert