Marriage is both, a civil contract in case of Muslim marriage and a holy sacrament in case of other religions and the society has certain thoughts about the same. Yet, it is not a standard frame contract. The spouses are and ought to be at a freedom to choose their own terms of the contract. Therefore, whether they allow each other to have or maintain sexual relations with outsiders should be the sole discretion of the parties alone. A criminal offence in Bangladesh under Section 497 of the Penal Code, 1860 is adultery which is considered to be an invasion to the right of the husband over his married wife. It is an offence which is committed by a third person against a husband in respect of his wife and of which man can alone be held liable for the offence. This paper argues that the man should not be the only one within the ambit of the Code but that the wife should also be guilty of adultery and for ensuring the constitutional validity of section 497 amendment of the Penal Code is the crying need of hour.
Adultery is a term which derived from the Latin term ‘adulterium’ where ‘ad’ means ‘towards’ and ‘alter’ means ‘other’. The main object of the law is to inflict punishment to those who interferes with the relation of marriage, and the legislature too considers it to be an offence when one interferes in the matrimonial home. The law basically provides that the offence of adultery is committed only by man (third party), who had sex with the wife of another man without the husbands consent and women cannot be punished, even as an abettor, as it is commonly accepted that it is the man who is the abettor and not the woman. The affected party is the husband. His family institution and dignity shall be destroyed by the third person. In the society, the husband is humiliated. He suffers mental agony and torture. It is commonly accepted that it is the man who is the seducer and not the woman, it is considered as an anti-social and illegal act, as held in the case of Hatim Khan v. State [AIR 1963 J & K 56]. Only married woman and third person take part in this offence. The woman is the consenting party to the offence. She also takes active part in the sexual intercourse voluntarily and most probably with sexual desire, love and affection. Sexual intercourse with an unmarried woman, or with a widow, or a divorcee woman or with a woman, whose husband gave his consent, does not constitute the offence of adultery.
Section 497 of the Penal Code, 1860 states 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”.
The framers of the Code did not make adultery an offence punishable under the Code. But the Second Law Commission, after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. It figures in the penal law of many nations and some of the most English lawyers have considered its omission from the Code a defect. At the time of its origin, it referred exclusively to sex between a married woman and a man other than her partner. Generally, adultery refers to a consensual sexual relationship between a married person and a person of other sex, who is not the spouse of the married person. However, it is not necessary that the other person be a married person as decided in the case of Samraj Nadar v. Abraham Nadachi [AIR 1970 Mad. 434, 457]. The offence is committed only by a man who has sexual intercourse with the wife of another man without his consent. Section 497 of Penal Code expressly provides that the law of adultery is not applicable on a woman and also the woman cannot be held liable for abetment of the same. To constitute the offence of adultery by a third party there must be sexual intercourse with the consent of the wife, penetration took place between the wife and third party, there was knowledge and reasonable belief that the woman is married to another man and that marriage should be lawful, the husband of the woman had not consented or connived for sex with his wife and the husband has complained about sexual intercourse, as decided in the case of Nurul Huq Bahadur vs Bibi Sakina and another [1985 BLD 269].
Justice or Injustice?
The wife is not punishable for being an adulteress, or even as an abettor of the offence, despite being a consent party to the crime. One of the essential ingredient of the section, which states that the absence of the consent of the husband is needed to constitute the act prima facie shows that the section is not gender neutral. The gender neutrality of the section has been in controversy for a long period. The constitutional validity of the section has been challenged on the grounds that it violates the fundamental rights of a man under Article 27 of the Constitution of the People’s Republic of Bangladesh which states that “all citizens are equal before law and are entitled to equal protection of law” and that this section does not come under the purview of saving clause under Article 28(3) of the Constitution of the People’s Republic of Bangladesh. Also, the section does not provide any remedy to a woman whose husband has committed adultery with another woman, which is also a violation of gender neutrality clause provided in Constitution. The Section 497 of the Penal Code which deals with adultery is gender biased mainly on the grounds that it does not allow the wife to prosecute the woman with whom her husband has adulterated. However, it allows the husband to prosecute the man who has adulterated with his wife. Generally, the law has considered woman to be a sufferer not as the author of the offence. The contention of the court is that the community punishes the “outsider” that breaks the wedding and events the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, that the erring ‘man’ alone can be punished and not the erring woman. However, the court misses out the point that the wife has no relief in criminal law though the same provision is given to the husband and in a case where the woman is unmarried the woman cannot be prosecuted altogether. This can be viewed as a violation of the principle of natural justice.
In the Constitution of the People’s Republic of Bangladesh it is stated that no one would discriminate on the grounds of sex. Yet, it is clearly observed that the legislature is making discrimination on the basis of sex on the pretext of giving ‘protective discrimination’ to the women. The special treatment given to the women under Article 28(3) should be restricted to such cases which must be related to some features or disability which are so peculiar that it differentiates women from men as a class. It should be a policy of law that making both man and woman be held liable for adultery. Law always considers man as offender whereas the woman is held incapable of committing the offence of adultery. The Section 497 of the Penal Code, 1860 is nothing but a violation of equality clause under the Constitution of the People’s Republic of Bangladesh.
The existence of Section 497 has no evident impact on society. Acknowledging this, most western countries have decriminalized adultery. It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even the UK, from which we have borrowed most of our laws. It is high time that this law should be amended to meet the present circumstances. Adultery as an offence is extremely gender biased, and hence the punishment for it follows the same pattern. The woman is looked at being incapable of taking care of herself if her husband chooses to violate the marital bed. This law acts as furtherance to this belief and suppresses any scope for achieving equality in laws governing both men and women. When personal laws today are efficient and operate for both sexes as being equals, and women are able to establish their own identity in society without their husbands, there is no requirement to retain adultery as a criminal offence as well. The redundancy of the adultery law in Bangladesh in the light of personal laws and changing social dimensions is suggestive of amending the law in this context. However, Section 497 should not be removed from the Code, but it is recommended that both the man and woman should be made guilty otherwise it would lead to interference with the most sanctified relation of marriage.