Adultery was brought under punishment nearly 155 years ago under the Penal Code 1860. Though many provisions of the code had been amended during the span and demand of time, the provisions of adultery remain unchanged.
Section 497 of the Penal Code 1860 provides 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 offense of rape, is guilty of the offense 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 punished as an abettor.”
Therefore, Section 497 of the Penal Code 1860 perceives consensual intercourse between a man, a married or unmarried, and a married woman without the consent or connivance of her husband as an offense of adultery.
Adultery is an offense which is committed by a third person against a husband in respect of his wife, and of which a man can alone be held liable for. Adultery is considered to be an invasion to the right of the husband over his married wife.
An offense of adultery can be charged only against a male, and based on a complaint made by a husband and nobody else. In the absence of a husband, a charge of adultery can be brought with the leave of the court by someone who had the care of the woman on his behalf, at the time when such offense was committed.
The relevant legal provision appears to be taken from the laws of medieval times, as law and order was very harsh in the Middle Ages.
Those in charge of law and order believed that people would only learn how to behave properly if they feared of what would happen if they broke the law.
Even the smallest offenses had serious punishments, from stealing to burglary of houses to murder. Fines, shaming (being placed in stocks), mutilation (cutting off a part of the body), or death were the most common forms of medieval punishment. There was no police force at that time, so law enforcement was in the hands of the community.
Criminal wrongs vs civil wrongs
Marriage is a legal agreement. A relationship between a husband and wife is based on trust, love, and commitment. Two people enter into a marriage contract upon certain terms and conditions, and both the parties abide by the terms because they love to live this marriage bond. They build a family through being faithful to each other.
Now, if a party to that marriage contract gets involved in another relationship with some other person and has intercourse, what’s the point of bringing a criminal charge against someone who breached the marriage contract that was built upon faith and love?
Moreover, breaking a contract is not illegal. Breaking a contract is a civil matter. In adultery, it is two legal adults having consensual intercourse with each other and hence it cannot be considered as a criminal offense.
Criminal wrongs are wrongs against the state, and not just against an individual. The wrongs which are against the benefit of the public and the state are labelled as criminal wrongs, whereas wrongs that affect the interests of a particular individual are called civil wrongs.
The criminal wrongs include acts such as murder, robbery, assault, theft etc, while the less serious wrongs like trespassing, nuisance, environmental pollution, copyright infringement, etc are recognized as civil wrongs.
Jurists opine that the provision under Section 497 of the Penal Code is unconstitutional because it is a violation of the right to privacy and infringement of the International Covenant on Civil and Political Rights, established almost two decades ago by international human rights jurisprudence.
Experts point out that in accordance with some traditions, customs, and different legal systems, adultery may constitute a civil offense with legal consequences in divorce cases, in respect of the custody of children, or the denial of alimony, amongst others.
However, it should not be a criminal offense and must not be punishable by fine, imprisonment, flogging, or death by stoning or hanging, such as in the many countries where adultery continues to carry severe penalty.
In most parts of the EU, including England, Austria, and Italy, adultery is not considered to be a criminal offense anymore. In the US, the law of adultery varies from state to state, however after the decision in Lawrence v Texas by US Supreme Court, the validity of adultery law is under debate.
Islamic countries like Afghanistan, Nigeria, Pakistan, Yemen, Sudan, Saudi Arabia, and Iran have provisions for death penalty as the maximum punishment for adultery, but the concept is deeply rooted in the traditional religious views of Shariah.
The penal law for adultery in Bangladesh is grounded on the one-and-a-half century old caste-based, stratified “social setting” in the context of the traditional conservative property-oriented familial ideology and sexual mores.
It’s also premised on a few outdated and moot assumptions of sexuality, sexual agency, and unequal mutual marital rights and obligations of the spouses. It is bridled with deep-rooted obsolete assumptions, predominantly premised on gender discrimination and the wife’s sexuality.
However, things have changed and now it’s high time that we start considering repealing laws criminalizing adultery, which have resulted in punishments ranging from the imposition of fines to flogging, hanging, and death by stoning.
“Adultery must not be classified as a criminal offense at all,” said Kamala Chandrakirana, a feminist human rights activist for justice and democracy from Indonesia, who has been a member of the United Nations Working Group on discrimination against women in law and practice since 2011.
A group of experts on human rights warned that maintaining adultery as a criminal offense -- even when it applies to both women and men -- means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy, and equality, given the continuing discrimination and inequalities faced by women.
Though the society has undergone through many historical, political, economical, and value-based development over time, surprisingly the penal provision of adultery remains stagnant in the same place.
Law is an ever-changing, dynamic subject. Any law failing to keep pace with the changing times becomes obsolete. Hence, there is a need to revisit and review the present provision of the Penal Code dealing with adultery, and bring the necessary changes.
In these 155 years after the codification of the Penal Code, there has been a huge change in society; women are no longer considered to be the property of her husband. Hence, such a law in the 21st century seems to be inconsistent with the modern notions of the constitutional spirit.
Tasmiah Nuhiya Ahmed is Advocate, Supreme Court of Bangladesh, and Research Assistant (Law), Bangladesh Institute of Law and International Affairs (BILIA).
