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Above: Illustration by Anthony Lawrence

Though adultery is not an IPC offence, it remains so under the J&K’s Ranbir Penal Code. This has led to a piquant situation where a colonel is being court martialled for this lapse even though he approached the apex court

By Pushp Saraf

In a rather dramatic manner, the fact that the adultery law continues to exist in Jammu and Kashmir (J&K) while being abolished in the rest of the country has come before the Supreme Court. An army officer, Col Rajnish Bhandari, charged by the elite force with infidelity, has pleaded that as adultery has ceased to be an offence under the Indian Penal Code (IPC), a similar yardstick should be applied to the Ranbir Penal Code (RPC), the main criminal law governing J&K.

The apex court had in a historic judgment on September 27, 2018, struck down the 158-year-old Section 497 of the IPC for being arbitrary, unconstitutional and destroying women’s dignity and self-respect as it treated them as their husbands’ chattel and offended their sexual freedom. This ruling did not apply to J&K which has its own penal code under Article 370 which guarantees the state’s special status.

The accused army officer has evoked the apex court’s judgment, seeking its enforcement in his case. One of his grounds was that he had since been moved to the Southern Command from Srinagar where the offence was alleged to have been committed. He was said to have developed affection for the wife of a fellow officer during his posting with Northern Command in J&K’s capital city. The woman’s husband filed a complaint against him. He had charges under Section 497 of the RPC and Sections 63 (violation of good order and discipline) and 69 (punishment under any law in force in the country) of the Army Act, 1951, framed against him by the Army.

Col Bhandari pleaded that he had been made a “scapegoat” in a matrimonial dispute. According to him, he faced tremendous humiliation, tarnishing his decorated career even as the complainant, who retired in 2007, and his wife had divorced. As court martial proceedings began, Col Bhandari took his arguments before the Armed Forces Tribunal. As the Tribunal did not accord any relief to him, on January 8, 2019, he filed a special leave petition before the Supreme Court under Article 136 of the Constitution. On March 15, a division bench of the apex court consisting of Justices Rohinton Fali Nariman and Vineet Saran granted him leave to appeal. On May 3, the bench allowed the court martial proceedings to continue but restrained implementation of the decision without leave of the Court.

The sudden shifting of focus on Section 497 of the RPC is not without irony. It has been considered more progressive than the similar section in the IPC for it also made the errant wife punishable as an abettor along with her paramour, something which the IPC rejected. The scenario has been significantly altered by the Supreme Court’s September 27 judgment which takes into account present realities, including the elevated position of women in society while knocking off an outdated law. The Supreme Court bench, which delivered the verdict, comprised then Chief Justice Dipak Misra and Justices Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. Declaring that the law was in contravention of Articles 14 (right to equality); 15(1) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); and 21 (protection of life and personal liberty), the bench held that adultery, while ceasing to be a crime, would continue to be a ground for divorce or any civil wrong.

Expectedly, the judgment has been widely hailed and debated. However, the winds of change it promised to usher in did not travel fast enough to J&K. The RPC largely follows the IPC with some variations. Any amendment in it can be made only by the state ass­embly which has not been functioning since June last year. The apex court’s verdict came when the assembly was placed under suspended animation following the imposition of Governor’s Rule. It has since been dissolved with Governor’s Rule giving way to President’s Rule. On the current reckoning, the assembly elections are likely to witness further delay given the Election Commission’s dilly-dallying approach and the political parties’ preoccupation with the parliamentary elections.

It is doubtful, however, whether Section 497 of the RPC would immediately disappear even after the assembly is reconstituted. There is likely to be resistance by largely conventional sections of the population. Legal and constitutional issues may also be whipped up. Mehrajuddin Bhat, an advocate in the J&K High Court and a former deputy advocate general, told India Legal: “The Supreme Court in its right perspective has not granted any relief to the petitioner challenging the validity of Section 497 of the RPC as the same stands protected by way of Article 370 which provides a mechanism for application of the Constitution of India to the state of J&K. Secondly, the social ethos, cultural values, overall societal fabric being by and large Muslim-dominated, such acts are looked down upon as obnoxious in our society.”

On the other hand, the BJP is looking beyond the RPC. It has made the abrogation of Article 370 itself a major issue in the ongoing parliamentary polls with PM Narendra Modi and BJP chief Amit Shah echoing the stand more than once. The party’s post-election standing will determine what it actually does.

Almost a month after the apex court’s decision, Section 497 of the RPC figured prominently in a love triangle involving a woman, her armyman husband and her alleged paramour, a BSF employee in J&K’s Rajouri district along the Line of Control. The BSF man was accused under Sections 457 (lurking, house-trespass or house-breaking by night in order to commit offence punishable with imprisonment), 497 and 109 (punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment) of the RPC in 2012. Lower courts granted him anticipatory bail followed by interim bail after he surrendered before the court.

On October 30, 2018, Justice Sanjay Kumar Gupta of the High Court observed: “Law is very clear that as the offences under Sections 457, 497 RPC are non-bailable, the court should have granted an opportunity to the prosecuting agency to file the objections, but the order reveals that no such opportunity has been given to the prosecuting agency to file the objections. Therefore, I am of the opinion that the order is not according to law. However, since more than six years have passed, so the bail already granted to the respondent is not required to be set aside.”

Section 497 of the RPC remains relevant in J&K and the dichotomy of the RPC and the IPC in this regard is glaring. Over the years, several steps have been taken to streng­then constitutional ties between J&K and the rest of the country. Much water has flown in the Jhelum since the 1950s when a special bench of the Supreme Court consisting of Chief Justice Mehar Chand Mahajan, Justices SR Das and Ghulam Hassan met in Srinagar and disposed of 17 appeals pending against High Court verdicts since the princely days. It is the only instance of an SC bench sitting outside Delhi. Conflict may be good politics but cooperation always works better as a tool to resolve differences.

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