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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 255
February 04, 2012

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Law Watch

Dissection of Penal liability: Is it discriminatory?

Syeda Afroza Zerin and Md. Harun Reza

It has been generally accepted that the theory of Penal liability is concerned with the punishment of wrong. A person is liable to be punished if he does a wrongful act intentionally or negligently. Where the law presumes that there can be no way at all, no penal liability can be imposed. Ordinarily, only that person is liable for wrong which someone has committed himself. In this endeavor the major concern is that if extra marital is not included in penal liability, is not it the contempt to the theory of penal liability? Again where women are exempted from penal liability arising out of adultery is not it discriminatory?

Extramarital affairs are relationships outside of marriage where an illicit romantic or sexual relationship or a romantic friendship or passionate attachment occurs and female partner may or may not be married one. On the other side, adultery is a sexual relationship which requires the consent of both the parties and where the female partner must be married one. In fact there is a very substantial difference between the term 'Adultery and Extra marital'. Though both the offence could be treated as the mother offence of so many other offences but extra marital is yet to be included in our Penal Code as an offence. Let us explain. In adultery there must be sexual intercourse with a married woman who is and whom he knows or has been reason to believe to be the wife of another man without the consent of the husband of that woman. Here, to commit the offence of adultery the woman is mandatorily need to be married and the man could be married or not. On the other hand, in extra marital sometimes the woman may be married or unmarried where the man is supposed to be married, in another way the man may be married or unmarried where the woman is supposed to be mandatorily married. It is so, as it is an extra marital relation. So very simply we can say that in case of adultery the woman must be a married one but the man is not necessarily to be married. Where as in case of extra marital, the woman must not be married where the man is married but the woman is necessarily to be married when the man is not. So problem lies with the fact that when the woman is married it may either adultery or extra marital but when the woman is not married it is definitely extra marital but not adultery. But unexpectedly the married woman cannot be punished under our existing penal laws neither for doing adultery nor for extra marital. Again what about the punishment of the unmarried woman who does an extra marital with a married man? Though the concept of vicarious liability mostly unwelcome in criminal law, the presence of joint liability sharpen the philosophy of penal liability. Joint liability arises where common intention found between or among the wrong doers. If it is so, why women should not be made liable under section 497 of penal code, as we find here manifest consent, on the part of the women?

Photo: shutterstock

Legal provisions prescribed in this regard is section 497 which provides that for doing adultery that means for entering into a sexual relationship with married women the penal code of Bangladesh suggests fife year's imprisonment or fine or both as punishment only for man and not for woman. 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. And adultery cannot be committed with unmarried woman, widows or prostitutes.

So there may a very vital question arise whether in Bangladesh the married women are legally allowed to enter into a relation with anyone else with the permission of their husband? This section creates a scope for the husband to compel their wife to enter into illicit relationship for monetary benefit. This is against Article 34 of the Constitution of Bangladesh. Because no one can be subjected to forced labor like forced prostitution. If we interpret section 497 of the penal code then unexpectedly we found the existence of discrimination. Is the section exempted the wife from the penal liability to create the scope for the husband to compel her wife to involve into an illicit relation without any hassle? If happen so, how this should be treated or whether it would be a distinct offence or not, also appear as a hot concern.

Very recently Samiul has been killed by his mother and mother's lover. Still the investigation is carrying on finding out the evidence regarding the murder. Neither the media, nor the judiciary focused the extra marital relation of the mother. When mother is killing her own child only for keeping her extra marital relation alive, then it really becomes a concern for the society. Even in murder case of Kh. Ehtasham Uddin Ahmad alais Iqbal Vs Bangladesh and others, BSCR 1980,239, the accused husband had an illicit relation with his maid servant and due to this relation the husband killed his wife. He was only punished for killing his wife and was not punished for zina. More over the maidservant was totally beyond the liability of the offence according to our own laws, whereas as a prudent person we cannot ignore her liability. In another case, State Vs Munir Hussain alais Suruj and others, 1989 where the husband killed his wife for having extra marital relation with others. Though the accused was convicted for horrendous murder but he was not punished for extra-marital relation. Finally, khuku with whom munir entered into the extra marital relation has been acquitted. From the above two judgment we can come to the conclusion that though for adultery sometimes man are getting punished but for extra marital neither the man nor the woman is punished. Consequently, the rate of extra marital and illicit relation by the married men and women is increasing in an alarming way.

Someone may argue that falling in love is ones substantive right. But when a mother kills her child to enjoy her own right, no doubt it is contempt to her Childs right to life. Time has come to decide whether mother's right to fall in love or Childs right to life should get preference? There after Penal code should introduce the term extra-marital as a punishable offence both for men and women. It is no doubt strange that, neither the man nor the women may be punished for doing extra-marital under our existing penal law

It was back in 18th century while Dr. Sutherland refuses to innate trial of women which suggests that they are more law abiding as compared to their male counterpart because they are excluded from the dominant role of bread career and other masculine activities. But for the recent days the scenario has been totally changed. Today, even though women are being involved with so many significant responsibilities, nevertheless still we possess the belief that 'A women is physically week intellectually poor mentally inconsistent, timid irrational and psychologically emotional'. It is generally accepted that female criminality is more damaging to wider society. True, in 1860 the women belonged to the backward class of the society. But days are changed now. Women are asking for equal treatment and equity. Even every where they are supposed to be equally treated. Therefore doing adultery by the men with a married woman if considered as punishable offence then not only the men but also the women is supposed to be punished.

However it is high time, to reconsider the issue of penal liability in case of adultery and consider the inclusion of extra marital as a substantive criminal offence. Particularly, introduction of penalty for woman in case of adultery, and inclusion of definition and punishment of extra marital both for women and men. Simultaneously, the legal scope which has been created for the husband to compel his wife to involve with illicit relation under section 497 should be abolished to protect and preserve the right and dignity of the womanhood.

The writers are Assistant Professor and Lecturer respectively at the Department of law and justice, BANGLADESH UNIVERSITY of BUSINESS & TECHNOLOGY (BUBT).





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