Crime & Punishment
Section 497 of the Penal Code 1860 defines the offence of adultery. It lays down that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.
Punishment: Imprisonment of either description for 5 years, or fine or both.
Adultery is an act which requires the consent of both the parties. The male offender alone is liable to punishment and the married woman is not liable even as an abettor.
The offence under this section is limited to adultery committed with a married woman. In the case of Nurul Huq Bahadur v. Bibi Sakina and other 1985 BLD 269, it has been held that to establish the charge of adultery it must be proved that sexual intercourse took place without the consent or connivance of the husband. Adultery cannot be committed with unmarried woman, widows or prostitutes.
Points to be proved by the prosecutions on a charge of adultery:
1. That the accused had sexual intercourse with the woman in question.
2. That she was the lawfully married wife of another man.
3. That the accused knew or had reason to believe that she was the lawfully married wife of another man.
4. That the husband of the woman did not consent to or connive at such intercourse.
5. That the sexual intercourse so held did not amount to rape.
Difference between adultery and rape. ---Adultery differs from rape in several ways:
First, adultery is an act which requires the consent of both parties, but in case of rape the consent of woman is wanting. Secondly, in adultery, the woman must be a married woman but in case of rape, it can be committed on any woman married, unmarried or widow. Thirdly, adultery cannot be committed by a husband with his own wife, but rape may be committed by husband upon his wife, if she is below 14 years of age. Fourthly, adultery is an offence relating to marriage, but rape is an offence against the person of the woman. And lastly, in adultery the aggrieved party is the husband, the wife having consented to the act but in rape the woman is the aggrieved party.
Source: Penal Code by L.Kabir.