Reviewing the Views
Adultery and the recent Indian SC judgment
India's apex court has ruled that adultery (section 497) is no longer a crime, scrapping a 158-year-old colonial-era law due to its "manifest arbitrariness" in punishing only men for adultery and for treating a woman as her husband's property. Section 497 states that any man who had sex with a married woman, without the permission of her husband, had committed a crime. So, this section had given a husband exclusive right to prosecute his wife's lover. According to the section, if the adulterer founds guilty, he faces five years imprisonment with fine. In treating women as their husband's property, the law was blatantly gender-discriminatory, the Court also struck down Section 198(2) of the CrPC under which the husband alone could complain against adultery. The court has stated that both husband and wife have to be treated equally from now.
In 1985, former CJI Y V Chandrachud had upheld Section 497 (Sowmithri Vishnu vs Union Of India & Anr). Justice D Y Chandrachud called the provision a relic of Victorian morality and observed that it "proceeds on the notion that the woman is but a chattel; the property of her husband".
The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. The judge said that this section exposed woman as the property of the husband which is unconstitutional. In the sense Section 497 has diluted the individuality of a wife.
In Bangladesh penal code there is similar kind of provision that we inherited in the British colonial era. This write-up does not claim that this provision has to be struck down, rather it poses some questions that need clarification.
Firstly, it would the reasonable argument for a wife to say that a similar right is not conferred on her to prosecute the woman with whom her husband has committed adultery. Further, Section 497 does not take into account cases where the intercourse of husband with an unmarried woman. Secondly, the provision does not confer any right as well on the wife to prosecute her husband for adultery.
The adultery provision of the penal code is violating the right to equality guaranteed under Article 27 of the Constitution of Bangladesh. Hence women are treated as passive entities, and as possessions of their husband. Moreover, it discriminates on the grounds of sex and punishes just men only.
The court opined in the judgment: "Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III of the Constitution guarantees." Therefore, not affording both parties to a marriage equal rights and opportunities would be discriminatory and a violation of their right to equality.
As mentioned earlier, the purpose of the write-up is not to say that the adultery should be decriminalized rather the purpose is that we need to consider the obiter dictum of the recent judgment of India in order to ensure equality in the marriage. Like it is mentionable that it is common to find instances of working women, who take care of the home, get beaten up by their husbands, who don't earn at all. She wants a divorce from him. But the matter remains pending in court for years. If she looks for love, affection and solace in another man, can she be deprived of it by criminalizing under section 497?
There are few changes that can be brought in section 497 of the penal code in order to ensure equality between spouses. Firstly, the wife should be given the right to prosecute the women with whom her husband has committed adultery. Secondly, the cases have to be taken into consideration when the husband has committed adultery with the unmarried women. Thirdly, Section 199 of the code of criminal procedure has to be amended giving the same right to wife to initiate a proceeding in the same kind of situation. Lastly, the concept that the men are the real perpetrator for adultery has to be reconsidered since it refers to "ancient notions" of the man being the seducer and the woman being the victim since if we go for fact-finding it is not the always the case.
Many people in India and also from Bangladesh think that adultery should be criminalized otherwise the institution of marriage will break. I think this is a misconception in the sense that if the marriage will stand on criminalizing the adultery otherwise not, then it would be better not to have that relationship.
The institution of marriage does not depend on criminalizing adultery, rather it depends on mutual respect and trust on each other. If any partner breaks down the trust that was assigned to him/her then there is no question in having that relationship by punishing the adulterer.
Rashedul Islam Rashed is a student of LLM Programme at South Asian University, New Delhi