Through a research it has been figured out that adultery is a reason behind increasing the rate of divorce over the world. In some of the countries, rate of adultery is in extreme position. Survey finds that around 22 percent of married peoples have committed adultery and in most of the cases men are committing adultery than women. Survey also includes that there are 36 percent cases of adultery in Finland, 36 percent in United Kingdom, 39 percent in Spain, Belgium have 40 percent cases, 41 percent in Norway, 43 percent in France and lastly Thailand have 56 percent of adultery cases. Alongside in Bangladesh, around 35-40 percent of adultery cases have been filed in last ten years.
ADULTERY: DESCRIBING THE TERM WITH CASE LAW
Adultery means to have sexual activity with a person who is not his or her spouse. Latterly, marriage is like a puppet game. Number of divorce is increasing because of adultery. Afore, women may include right to give divorce in marriage contract with the permission of husband, only a husband may give divorce with proper reasoning but the matter of concern is currently women have the right to give divorce and in case of men, still they have to show proper reason for giving divorce. Herein, one person either the men or women must be married mandatorily and marriage is not mandatory in other one’s case. It has been also justified by one of the renowned case titled Nurul Haq Bahadur v. Bibi Sakina and others. In the concerning case, it has been also observed that if a person had sexual intercourse with a women who is not married that will not amount to adultery.
A married woman and a third person may take part in the offence related adultery. In another case of Samraj Nadar v. Abraham Nadachi 1970 has been observed that the women is the main consenting party in the concerning offence. From love, affection and desire, she had an active participation and such cases wife of other person cannot file any case against the man. Adultery may causes deserted women, divorce, violent crime, may create violence between partners, domestic violence, children’s also may suffers for this, sexually transmitted diseases and etc.
Through this case laws, it can be assumed that consent of both parties is the most essential element for constituting an offence of adultery. Case comments are creating great impact on such circumstances. It might be used as an instance for later cases. Including this, proper implementation of laws are also needful for reducing such kind of offences. Lack of proper laws is one of most important reason behind the offence of adultery.
Section 497 of the Penal Code, 1860 is dealing with the offence related adultery. Punishment regarding offence related to adultery has also been mentioned in this concerning section which includes imprisonment which may extend to five years or fine or both. Further added that in such of offences women shall not be liable for abetting as an abettor. Almost 160 years have been passed, there is no changes or amendment of these laws yet now. Though we are having laws concerning adultery but loopholes of these laws are main concern for us nowadays. It is need to be proved that one have sexual intercourse with a women which is amounting to adultery. Otherwise the men will not guilty for such kind of offence. It has been mentioned in section 345(1) of Code of Criminal Procedure, 1898 articulated that victim can compound the offence without the permission of court and it may encourage the husband to force his wife to lead an immoral life for monetary benefits which indicates as compoundable offence. At one point this section of penal code is conflicted with Articles 27 (Equality before law) and 32 (Protection of right to life and personal liberty) where the personal liberty has not been ensured yet which includes the right to sue of women. In other countries like USA adultery is illegal, in UK and India it is not considered as a criminal offence and in Islamic countries adultery also known as ‘Zina’ is totally prohibited.
It is noteworthy that adultery is a criminal offense as well as a civil wrong. According to Muslim personal law, marriage is a ‘civil contract’ and a wife has some legal civil rights which are getting violated for such offence. The victim party may seek redress under the Family Court Ordinance 1985 for “restoration of marital life”.
1. Amend existing provisions
Highly appreciated if the frontline laws regarding adultery could be amended including the supplementary laws if needed. Penal Code, 1860 has mentioned about adultery in section 497 and section 493, 494, 495 496 of the same Act has been well described regarding the offence related marriage. Many loopholes i.e. liability of offence might be found if we go through the provisions as it is an unchanged Code since 1860.
2. Increase the punishment
Punishment concerning adultery has been determined also in section 497 of the Penal Code, 1860 imprisonment which may extend to five years or fine or both. Amendment is also needed in this provision of punishment. Some exemplary punishment should be set out by the concerned authority to reduce adultery.
3. Comparative Approach
Countries i.e. Australia, Britain, Canada, Russia, Italy, Japan Germany has a very less number of cases of adultery which might be a great inspiration for the countries where the rate is increasing gradually. Strong bonding in the relationship, having a good mentality might help a person to avoid offence like adultery. Family and society is the very basic place for learning positive things.
The rate of adultery is increasing day by day. We have different provisions to protect our society from such unsocial and immoral offence but the thing we need is proper implementation of those laws. This is the high time to make proper changes in the society and the only way is reducing crime rate from society.
Indeed, adultery is considered as the most heinous crime in the society in which we are living but all together we could make change in the society and ensure a crime free society.
Authors Name: Mahabub Ul Alam Khan & Osman Goni Emon (Daffodil International University)
 1985 BLD 269