Adultery is commonly defined as a voluntary sexual relationship between a married person and someone who is not their spouse. In legal terms, it is often considered a breach of the marital contract and can have various legal consequences which also include emotional, psychological, and social impact. For instance, adultery frequently elicits strong feelings such as anger, jealousy, and betrayal. These heightened emotions might result in violent altercations and vindictiveness. The adulterer might exploit the secret to manipulate or coerce the other person through blackmail. Moreover, adultery undermines trust, breaks families, erodes societal cohesiveness, causes health issues, and contravenes ethical and religious values.
Section 497 of the Penal Code, 1860 was enacted to combat adultery. However, section 497 fails to ensure gender equality between men and women. Additionally, the provision is restricted to adultery involving a married woman and does not extend to cases involving a widow or an unmarried woman. Hence, the purpose of this writing is to examine and challenge this provision with respect to gender equality and constitutional rights.
Section 497 provides three essential elements to constitute the offence of adultery namely; (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) Such sexual intercourse must be without the consent or connivance of the husband; and (iii) Such intercourse must not amount to rape.
The first element indicates that a wife has no recourse if her husband commits adultery with another married woman, as the wife’s consent and connivance to her husband’s adultery falls beyond the purview of this clause. As per the second element of Section 497, only the husband’s consent and connivance to his wife’s adultery constitutes it unpunishable. This provision is prone to misuse, as a husband might permit his wife to engage in such activities for financial gain.
In the case of Nurul Huq Bahadur v. Bibi Sakina and other, (1985) BLD 269, the Court held that to establish the charge of adultery it must be proved that sexual intercourse took place without the consent of the husband and adultery cannot be committed with unmarried woman, widows or prostitutes.
The Code considers only male individual as both the victim and perpetrator of adultery. Section 497 states 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. It is clear that the current provision allows only a male to prosecute another male as the offender. But When an adulterer man participates in adultery, his wife also becomes a victim, along with the husband of the women , with whom the man commits the adultery.
The following provision fails to acknowledge females as victims or perpetrators. The constitutional validity of section 497 has been challenged on the grounds that it violates the fundamental rights of women under Article 27 and Article 28 of the Constitution of the People’s Republic of Bangladesh. It reflects the principle ‘nemo est supra legs’ which means all citizens are equal before law. Hence, both male and female should have the equal right to bring legal action. But the Section 497 does not ensure such right to bring legal action to woman which is sheer example of a violation of equality clause under the Constitution of Bangladesh.
In addition, it suppresses women’s rights by undermining their ability to address family and marital issues, as it prevents them from pursuing charges against both their guilty husband and the adulteress.. Therefore, Section 198 of the Code of Criminal Procedure, 1898 should be amended in order to allow women to file complaints against unfaithful spouses and prosecute them for adultery.
Art 28 of the Constitution enumerates that; the State shall not discriminate against any citizen based on religion, race, caste, sex or place of birth. When adultery is committed, it takes place between two consenting adults. But as per the provision, the male offender alone is liable to punishment and the married woman is not made liable in any manner, not even as an abettor. Therefore, it creates discrimination as well as violates the fundamental rights of the Constitution.
In 2019, the High Court Division has issued a rule questioning, why the punishment for extramarital affairs included in Section 497 of the Penal Code, 1860 should not be pronounced unlawful and unconstitutional in its ruling on the subject of extramarital affairs.
Notably, the Indian Supreme Court also declared the concerned provision unconstitutional in Joseph Shine v. Union of India, Writ Petition (Cr.) 194/2017. In this case, a petition was brought under Article 32 of the Indian constitution, questioning the legality of Section 497 of the IPC. The argument was based on the fact that the provision in question does not grant a woman the ability to prosecute the adulteress with whom her husband has committed adultery, and therefore it is discriminatory.
Apart from the domestic provisions, the international treaties and conventions also refer to gender equality. Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) clearly advocates for ensuring the equal rights of men and women in the enjoyment of all economic, social, cultural, civil and political rights. The same has been reiterated in Article 3 of International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). As Bangladesh has acceded to CEDAW in 1984, ICCPR in 2000 and ICESCR in 1998, it has obligations to implement the rights recognized in those Treaties.
Section 497 of the Penal Code, 1860, fails to uphold gender equality and constitutional rights by only penalizing men for adultery while denying women the opportunity for legal recourse. This gender-discriminatory approach is inconsistent with constitutional principles and international human rights norms. To resolve these issues, the law should be amended to hold both men and women responsible for adultery and expand legal recourse to allow both male and female to file complaints and prosecute. Furthermore, Section 198 of the Code of Criminal Procedure should be revised to permit women to pursue legal action against unfaithful spouses. Ensuring that legal provisions align with international standards such as CEDAW, ICCPR and ICESCR is essential. Additionally, raising public awareness about the updated legal framework and gender equality principles will aid in the effective implementation of these reforms. Therefore, an amendment should be introduced to section 497 to place men and women on the equal footing regarding adultery.
