Generally,Offenses are restrictions imposed by the state or made under the authority of the state, the non-observance or doing of which is harmful to all and the violation of which imposes something punishable. From the beginning of the development of human civilization, people have thought about ideas related to crime and its remedies. Criminal law or any law has the authority of society, state or king, religion and community.
In that sense, in the course of time, criminal law in the form of the king’s orders, religion, and social customs have transformed into state control and imposed restrictions; that’s what we understand criminal law today. In almost all societies and Cultures for cohabitation and family formation,extramarital relations were seen as a serious offense the natural relationship between men and women, In the Indian subcontinent, male-female relationship, marriage related issues have been in religious rituals since ages.Matters are still governed by personal law, but it does not deal with matters related to criminal offenses because NOW religion cannot impose penal liability as the state is separated from religious penal law. Penal law and system arranged by the state. Only personal matters governed by religion.
So in that case, let’s see what is the Penal Code 1860 says
Section 497 of the indian penal code runs If a person has sexual intercourse with the wife of another person or whom he knows to be the wife of another person or has reason to believe to be the same, without the consent and support of that other person in such a manner as does not amount to rape, that person shall be guilty of the crime of adultery. shall be guilty and shall be liable to imprisonment for a term which may extend to seven years, with or without fine, or with both.In such cases the wife will not be punished as an accessory to the crime.
We socially understand the word extramarital affair (porokia)as the extramarital relationship of a husband or wife but legally it is defined as adultery and in this case it is necessary to prove sexual physical relationship otherwise it will not be considered as adultery.
This law is completely outdated in the reality of 21st century society and is in conflict with the principle of equality between men and women and equality under the law in the Constitution of Bangladesh. This colonial de facto law was outright struck down by the Supreme Court of India. It is still valid in our country. According to this law, having sex with the consent of the husband is not included in the definition of adultery. Besides, the wife has been acquitted as an accomplice in the crime.
In the reality of that time, the social position of women was controlled by men, an educated women’s society could not be imagined, so there was no idea that women could make any decisions independently. The number of adult unmarried women in the society was very low except for a small number of widows or divorcees. Currently the number of educated unmarried women and the adult unmarried class is at peak.But the reality of that time was not like today so only the person who had sex with the wife could be accused.Also, this section does not punish both the married couple for having extra-marital relations or having sex with anybody not married. only the third person is liable on behalf of the wife. Therefore husband’s sexual relationship with unmarried women is neither adultery nor any crime.similarly wife is not responsible for her sexual relationship with married or unmarried man.
Again, in Bangladesh there is no law that consider adults (consented sex before marriage) “live together” as an offence.
Consent age for girls is 16 years.before 16 if a girl even gives consent it will be considered as rape according to section 9(1) explanation of nari o shisu nirjaton domon ayin 2000
Thus fornication is no crime.so the legal validity is already in place. Neither Penal code nor any special law barred it .But our social and religious views are quite different.
As a result of such ambiguities, loopholes, outdated laws in the context of modern reality, offences related to marriage, Male-female relations,family breaking, degradation of values are increasing in society. The penal law should therefore be in conformity with the moral and social conscience of the people at large otherwise we may have Rock solid looking laws but it will fail to achieve its purpose. Keeping in mind the social and religious beliefs, it is necessary to enact a special law in this regard to regulate matrimonial offences.
Student, Department of law, University of Rajshahi.
The writer is a columnist in various news portals and national newspapers.