Addressing the constitutional validity of the provision of adultery
Though committing the act of adultery requires the consent of both parties, the male offender alone is liable to punishment and the married woman is not liable even as an abettor
Adultery refers to consensual sexual intercourse between a married individual and someone other than their present spouse or partner. Nowadays, adultery is a prevalent extramarital relationship, even though it is illegal, immoral, and socially unacceptable. Section 497 of the Penal Code (PC), 1860 was enacted to combat adultery. However, section 497 does not treat men and women equally.
Section 497 deals with the offense of adultery. This section defines adultery as Sexual intercourse by a man with a woman who has reason to believe to be the wife of another man, such sexual intercourse must be without the consent or connivance of the husband and such intercourse must not amount to rape.
Though committing the act of adultery requires the consent of both parties, the male offender alone is liable to punishment and the married woman is not liable even as an abettor. It argues that a man should not be the only one within the ambit of the Code but a wife should also be guilty of adultery. However, as per section 497, the adulterer is liable for 5 years imprisonment or a fine or both.
According to the provision, a wife of an adulterer cannot sue her husband or an adulteress. Only a man can sue another male (adulterer). It denounces the legal personality of women.
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The constitutional validity of this section has been challenged because it violates the fundamental rights of a person under Article 27 of the Constitution of the People's Republic of Bangladesh which states "Nemo est supra legs which means that [All citizens are equal before law]. Therefore, if any dispute arises then male or female both have the equal right to sue in the Court. But section 497 does not give the right to sue a woman. The right to sue a woman is violated. That's why section 497 is a sheer example of a violation of the equality clause under the Constitution of Bangladesh.
Art 28 enumerates that "the State shall not discriminate against any citizen based on religion, race, caste, sex or place of birth. But as per section 497, adultery requires the consent of both male & female, here only the male offender is liable to punishment and the married woman is not liable even as an abettor. Moreover, only a man can prosecute another male (adulterer). Therefore, it creates discrimination as well as violates the fundamental rights.
Art 26 enumerates the 'Doctrine of Eclipse and Doctrine of Severability' which demonstrates that […..State shall not make any law inconsistent with any provisions of this Fundamental Rights]. Hence, the authority should remove the inconsistency part of section 497.
In 2019, the High Court issued a rule that the punishment for extramarital affairs included in section 497 of the PC should not be pronounced unlawful and unconstitutional in its ruling on the subject of extramarital affairs. Notably, the Indian Supreme Court also declared the provision unconstitutional in Joseph Shine v. Union of India, Writ Petition (Cr.) 194/2017. In this case, a petition was brought under Article 32, questioning the legality of Section 497 of the IPC. The provision in question does not grant a woman the ability to prosecute the woman 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 03 of CEDAW clearly demonstrates that [to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights].
Article 03 of ICCPR and ICESCR enumerates that [States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights and economic, social and cultural rights set forth in the present Covenant].
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. Since, the country is dualist; Treaties do not have self-executing powers in Bangladesh. Ratification or accession to international treaties does not require the Government of Bangladesh to execute the obligations resulting from those treaties until they are integrated into Bangladesh's domestic legal system.
Nonetheless, different treaty clauses have been interpreted by Bangladeshi Courts at various periods in interpreting Constitutional human rights. In the case of H.M. Ershad vs. Bangladesh 2001 BLD (AD) 69, Justice Bimalendu Bikash Roy Chowdhury remarked that if international conventions, treaties and laws are consistent with municipal law and there is a lacuna in the domestic law then international law can be applied in respect of interpretation of domestic laws.
Since Section 497 allows only a male victim to prosecute another male as the offender, therefore, a female victim cannot prosecute against the offender. Although adultery takes place between two consenting adults, the male offender alone is liable to punishment and the married woman is not made liable in any manner. Hence, Section 497 does not treat men and women equally. Therefore, an amendment should be introduced, in light of gender equality, Constitutional and international obligations, to place women and men on equal footing regarding adultery.
Kanak Kanti Karmakar is a LLM student at Bangladesh University of Professionals (BUP), Dhaka. Pritom Kanti Karmakar is a LLB student at Stamford University of Bangladesh, Dhaka.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
