Adultery Law and Gender Justice: A Critical Analysis of Section 497 in Bangladesh

Introduction

A consenting sexual relationship between a married person and someone who is not their spouse is generally referred to as adultery. Legally speaking, it is frequently regarded as a violation of the marriage contract and may result in a number of legal repercussions in addition to social, psychological, and emotional effects. Adultery, for instance, often causes intense emotions like rage, jealousy, and betrayal. Vindictiveness and violent altercations could be the outcome of these elevated emotions.

The Statutory Framework of Section 497

To combat adultery, Section 497 of the Penal Code, 1860, came into effect.^[1] It outlines three essential components for the crime of adultery, which are as follows:

Gender Disparities and the Legal Vacuum

The first part of Section 497 demonstrates that a wife has no remedy if her husband commits adultery with another married woman because this provision lacks coverage for the wife’s consent and connivance to her husband’s adultery. For example, if Mr. A, a married man, engages in a consensual sexual relationship with Mrs. B, the wife of Mr. B, Mr. B may initiate legal proceedings against Mr. A. However, Mrs. A, the wife of Mr. A, has no equivalent legal remedy under Section 497 despite being equally affected by the adulterous conduct. In line with the second part, only the husband’s consent and connivance in his wife’s infidelity render it non-punishable. This norm is likely to be abused since a husband may allow his wife to engage in such activities for financial advantage.

In the case of Nurul Huq Bahadur versus Bibi Sakina and Others,^[2] the court ruled that adultery cannot be committed with unmarried women, widows, or prostitutes and that it must be proven that sexual relations occurred without the husband’s permission. Thus, if a married man has sexual relations with an unmarried woman, the act would not fall within the scope of Section 497, even though it may constitute a breach of marital obligations.

Section 497 exclusively takes into account only men as the perpetrators of adultery and recognizes only husbands as aggrieved parties. It stipulates that anybody who engages in sexual activity with someone they know or have cause to suspect is the spouse of another man, without that man’s consent or connivance, and where the act does not constitute rape, is guilty of adultery. It is evident that only a male may prosecute another male as the criminal under the existing provision. For example, in the case mentioned above, Mr. B can prosecute Mr. A, but Mrs. A cannot prosecute either her husband or Mrs. B. Along with the husband of the woman involved, the adulterer’s wife also suffers when adultery occurs.

Constitutional Violations

The clause fails to define women as either offenders or victims. Section 497’s constitutionality has been contested on the grounds that it infringes upon women’s fundamental rights as guaranteed by Article 27 and Article 28 of the Constitution of the People’s Republic of Bangladesh.^[3] Article 27 embodies the idea that all citizens are equal before the law. Therefore, the right to file a lawsuit should be equal for men and women. However, Section 497 does not guarantee women the ability to file a lawsuit, which is a blatant breach of the Constitution’s equality clause.

The State is prohibited from discriminating against any person on the basis of religion, race, caste, sex, or place of birth, according to Article 28. Adultery occurs between two consenting adults. However, as per the clause, the married woman is not held accountable in any way, not even as an accomplice, and only the male participant is subject to punishment. Consequently, the provision creates unequal treatment on the basis of sex and raises concerns regarding the constitutional guarantee of equality.

In its 2019 verdict on extramarital affairs, the High Court Division questioned why Section 497 of the Penal Code, 1860, should not be declared illegal and unconstitutional.^[4]

International Obligations and Comparative Precedent

Gender equality is mentioned in international treaties and conventions in addition to domestic regulations. Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) clearly requires States to ensure that men and women enjoy equal access to economic, social, cultural, civil, and political rights.^[5] The International Covenant on Civil and Political Rights (ICCPR), Article 3, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 3, reiterate the same principle. Bangladesh has obligations to implement the rights recognized in these treaties, having acceded to CEDAW in 1984, ICESCR in 1998, and ICCPR in 2000.

In Joseph Shine versus Union of India,^[6] the Supreme Court of India struck down the corresponding adultery provision and declared it unconstitutional. The Court reasoned that the provision was discriminatory because it denied women equal legal standing and treated them as passive subjects rather than autonomous individuals. Similar concerns arise under Section 497 of the Penal Code, 1860.

Section 497’s stipulation, which penalizes only men for adultery while denying women the opportunity to seek legal recourse, contravenes principles of gender equality and constitutional rights. This gender-discriminatory framework is inconsistent with both international human rights standards and constitutional tenets. To rectify these issues, the provision necessitates amendment to ensure accountability for adultery is shared equally between men and women. Furthermore, the scope of legal remedy should be broadened to allow both genders to lodge complaints and initiate legal proceedings.