Adultery is generally considered as intrusion in the marital right. Besides religious, social and other moral values, it is a punishable offence under the Penal Code, 1860. This write-up is an endeavour to recheck the efficiency of the provision of the Penal Code to meet the contemporary demand of our society.
Oxford English Dictionary defines adultery as voluntary sexual intercourse between a married person and a person who is not their spouse. Section 497 of the Penal Code, 1860 lays down that,
“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.”
As a law of almost 160 years old, an amendment is felt necessary in the Section. This necessity is explained under the heads as below:
Conditions of applicability
To apply this provision of the Code on adultery law, the prosecution must satisfy a court the following essentials:
- Sexual intercourse with consent of both the accused and the woman must be proved.
- The woman is to be wife of another man and the accused is to be known or has reason to know about the marital status.
- Husband of the woman does not consent or connive to such intercourse.
- Such intercourse cannot amount to the offence of rape.
- And husband of the adulteress makes the complaint before the Court.
Without these requirements, victim (only the husband of adulteress) of adultery cannot demand justice before any court. Hence, some practical complexities arise while implementing this law.
Complexity and inability of the law
Suppose, in any case, when both woman and man are married, there should/will be two victims, i.e. husband of the adulteress and wife of adulterer. The Bangladeshi law recognizes only male person, as both, victim and offender of the offence of adultery. A female person can neither be regarded as an offender nor a victim of adultery. Under the present section, only a male victim (husband of adulteress woman) can sue another male (the adulterer) as offender. Where an adulterer engages in such activity, his wife also becomes victim. Surprisingly, wife of adulterer can not sue her husband or the adulteress. Hereby, this section, in fact, making the female person as merely property of male counterparts, does not recognize female as either victim or offender. Indirectly, it denounces the legal personality of women.
Secondly, a husband can not file a case against his adulteress wife. But only the adulterer can be prosecuted for the offence in which both adulterer and adulteress consented. One’s consent to an offence is substantial but at the same offence, another person’s consent is counted unimportant. Again, in the context of the present Bangladeshi law, a male person, whether married or unmarried, can not be tried for illicit sexual intercourse with an unmarried woman or a widow, or a divorcee or with woman whose husband has given consent to such intercourse.
Furthermore, a Bangladeshi Court held that adultery can not be committed with unmarried woman, widows or prostitutes. (Nurul Huq Bahadur vs Bibi Sakina and another 1985 BLD 269). Hence, only husband’s ‘consent and connivance’ to his wife’s adultery makes it unpunishable whereas wife’s ‘consent and connivance’ to her husband’s adultery is not under the scope of the present section. Though polygamy and prostitution are tried to be restricted under law (section 6 of the Muslim Family Laws Ordinance, 1961 and the Penal Code, 1860 and also sections 12, 13 of the Prevention and Suppression of Human Trafficking Act, 2012), but this provision indirectly encourages the both. Overall section 497 indicates that, women are beneficiary under this obsolete section and on the other part, another woman is a victim of this offence.
The social scenario at the time of emergence of the Penal Code is found from the observation of the authors of it. Section 497 was introduced in this sub-continent in a period when polygamy and child marriage were common phenomena of the then society. Woman had to share husband’s attention and love with several rivals. When husband could fill his zenana with several women, women were confined inside their home.
Now, nearly after 160 years of the enactment, the social condition of women is not the same at all. Polygamy is not a norm of society anymore. Polygamy and child marriage are now tried to be prohibited under various statutory provisions. Women are now doing great job from being a school teacher to Prime Minister of the Country. Its noteworthy that, recently in Joseph Shine vs. Union of India, Writ Petition (Cr.) 194/2017 the Indian Supreme Court has opined the section unconstitutional on the ground that it considers woman as “property of men”. In my opinion, as marriage is considered as social contract, an amendment should be made bringing woman and man at the same footing regarding adultery which will protect the ‘consideration’ of the said social contract i.e. marriage in the society.
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