Tanzina Fardoush
Managing Editor, The Oniket Bulletin
Bangladesh’s Penal Code of 1860 retains a colonial-era provision on adultery that is increasingly difficult to reconcile with the country’s constitutional commitments to equality and non-discrimination. Section 497, as it currently stands, not only fails to protect the very individuals it claims to serve but actively perpetuates gender-based legal inequality with far-reaching social consequences.
The case for reform is not merely technical; it is foundational to the integrity of the legal system and the social fabric it governs. This article is intended to identify these essential reforms and thereby serve as a benchmark for initiating the already overdue discussion on this.
The Discriminatory Architecture of Section 497
Section 497 criminalizes adultery but defines it in strikingly narrow and gendered terms. Only a man who has sexual intercourse with another man’s wife, without that husband’s consent or connivance, can be prosecuted. The married woman involved cannot be prosecuted, not even as an abettor. And the provision applies exclusively to adultery involving a married woman, leaving widows, unmarried women, and sex workers entirely outside its protective or punitive scope.
The law, in essence, treats the husband as the sole victim and the male outsider as the sole offender, reducing the married woman to the status of chattel whose violation injures her owner, not herself.
This gendered construction produces perverse social outcomes. A wife whose husband commits adultery cannot initiate proceedings against either her husband or the woman with whom he has been unfaithful. She is legally silenced, forced to endure the breach of the marital contract without remedy.
Conversely, a husband can prosecute the male adulterer who sleeps with his wife, weaponizing the criminal law to exercise control over her sexuality while facing no corresponding accountability for his own. The potential for misuse is considerable: a husband may even acquiesce to his wife’s adultery for financial gain, a scenario the provision’s drafters evidently never contemplated.
The social consequences of this discriminatory framework extend well beyond individual grievance. By denying women legal agency in matters of marital fidelity, the law reinforces patriarchal norms that subordinate women’s autonomy to male authority. It signals that women’s interests in marriage are derivative, protected only through their husbands, never independently.
This structural disempowerment feeds broader patterns of gender inequality, constraining women’s ability to address family and marital breakdowns through lawful means and, in some cases, pushing disputes into extralegal arenas where abuse and violence become more likely.
Constitutional and International Incompatibilities
The provision sits in direct tension with Articles 27 and 28 of the Constitution of Bangladesh. Article 27 guarantees equality before the law; Article 28 prohibits state discrimination on the basis of sex. A law that grants only men the right to prosecute adultery and shields only husbands as victims cannot survive scrutiny under either provision. The principle of nemo est supra leges (no one is above the law) demands that both men and women possess equal standing to bring legal action. Section 497 violates this principle wholesale.
Bangladesh’s international obligations reinforce the domestic constitutional case. As a party to the Convention on the Elimination of All Forms of Discrimination against Women since 1984, the International Covenant on Civil and Political Rights since 2000, and the International Covenant on Economic, Social and Cultural Rights since 1998, Bangladesh has committed to ensuring equal rights of men and women across all domains. Section 497’s gender-discriminatory framework is incompatible with these treaty obligations and exposes the state to credibility deficits in international human rights forums.
The judicial direction is also clear. In 2019, the High Court Division issued a rule questioning why Section 497 should not be declared unlawful and unconstitutional. India’s Supreme Court has already struck down its identical colonial provision in the landmark Joseph Shine v. Union of India decision, finding that the law’s failure to grant women the ability to prosecute the adulteress discriminated on the basis of sex. Bangladesh’s judiciary is on record as entertaining the same constitutional question.
Legal Reforms Required
Section 497 must be amended to establish gender-neutral application. Both men and women should be equally liable for committing adultery and equally entitled to seek legal redress when they are victimized by a spouse’s infidelity. The anomalous framework in which only men can be offenders and only husbands can be complainants must be dismantled entirely.
Section 198 of the Code of Criminal Procedure, 1898, which restricts who may initiate adultery proceedings, must be revised to grant women an independent right to file complaints against unfaithful spouses and their partners. Without this procedural reform, any substantive amendment to Section 497 remains functionally hollow.
The provision’s scope must extend beyond adultery involving married women to encompass all forms of extramarital relationship that breach the marital contract, regardless of the marital status of the other party. The current exclusion of widows, unmarried women, and others creates arbitrary distinctions that lack rational justification and further entrench inequality.
The legal framework should incorporate provisions addressing coercive scenarios, such as husbands compelling wives into adultery for financial benefit that the current text neither anticipates nor penalizes.
Reforms must be accompanied by public awareness campaigns that communicate the updated legal position and the gender equality principles underpinning it. Legal change without civic comprehension risks reproducing the same social dynamics through informal norms.
The social consequences of an unjust law do not confine themselves to the courtroom. They shape power dynamics within families, influence women’s economic and social independence, and determine whether disputes are resolved through law or through force. Reforming Section 497 is not peripheral to an archaic statute; it is a necessary step toward aligning Bangladesh’s legal order with its constitutional promise and its international commitments.
