Marital rape and adultery. The topics are not new; this is not the first time they are being written about in Bangladesh, and definitely not new in being tackled and addressed regionally or globally.
It is still worth repeating, particularly with a change in government, to remind our leaders that true progress cannot be achieved while treating women as second-class citizens in our laws.
This article tackles two issues: Why have we legalized marital rape and criminalized the male adulterer?
Yes, marital rape is legal in Bangladesh; and yes, a man in a relationship with a married woman is a criminal. Interestingly, a woman dating a married man is not a criminal.
Point to be noted -- both provisions were included in the Penal Code in 1860 when women were well, property -- that is, a thing to own.
Colonial hangover
It goes without saying that a law made in 1860 has colonial origins, with roots in Victorian morality of the 1850s and 1860s England.
The Victorian legal presumption at the time was that a wife was the property of her husband, and property cannot be aggrieved or offended, and of course one does not take consent from his property, right?
Wrong. 164 years on, the entire premise is ridiculous, laughable, and entirely wrong.
We have a Constitution which from the get-go envisioned a society in which the rule of law, fundamental human rights and freedom, equality, and justice (political, economic, and social) were secured for all citizens -- irrespective of gender.
We ratified the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) in 1984 committing ourselves to progressively advance gender equality, to protect women from violence, and to provide equality in family relations.
And yet such obnoxious provisions persist, even being overlooked when reforms to the Penal Code have been considered few and far between by the Law Commission.
Section 375 of the Penal Code deals with the offense of rape where consent is the essence of the provision; but there is an exception to consent. The exception is further elaborated in section 376 which is the marital rape provision.
This section basically says rape is not rape if the rape is committed by a man against his wife. The wording actually reads:
“Whoever commits rape shall be punished…unless the woman raped is his own wife…”
But wait, there is a protection in the law -- the law protects wives who are less than 13 years old!
Why would a wife be 13 years old when the legal age for marriage is 18 for women or 16 if there is parental consent (yet another can of worms)?
Where exactly has this law placed the status of married women? Second class not only to men and their husbands, but also second class to unmarried women because at least consent matters when you are unmarried. So third class then?
Sarcasm aside, the marital rape exemption is a legacy provision of the British colonial rulers from 1860 which continues to remain law for us while England itself criminalized marital rape in 1991.
This exception has also been withdrawn across multiple jurisdictions such as Canada, Australia, and South Africa. The European Commission of Human Rights in fact endorsed conviction for marital rape in CR v United Kingdom leading to amendments being passed in its Criminal Justice and Public Order Act, 1994.
On the other hand, criminalizing adultery is in section 497 of the Penal Code, 1860. This provision falls within Chapter XX of the law, which relates to “Offenses Relating to Marriage” which aimed to protect the institution of marriage.
Adultery, we know, involves a breach of the commitment and fidelity expected within the confines of a marital relationship and is generally considered a violation of emotional trust that spouses place in each other.
Adultery has significant consequences for marriages and families. Morally objectionable for sure, but what if there is consent?
According to our law as it stands, if a man engages in intimate relationship with a woman whom he knows or has reason to believe is the wife of another man, such an act constitutes the crime of adultery if such act is without the consent or “connivance” of the husband.
So consent is important when it comes to adultery; the consent being that of the husband, because let’s face it, wives were property after all and why would their choices matter!
Let’s not be too harsh, there is protection for wives in this section too. This provision in the 1860 law in its magnanimity does not hold the wife accountable as an abettor although she is half (?) of the adultering whole.
The punishment is only for the male adulterer engaging with a married woman without her husband’s consent or connivance. The punishment is up to five years of imprisonment.
There are a number of things glaringly wrong with this provision: Section 497 did not criminalize adultery because it damaged the marriage of two persons, for if this were the intention of the law, then extramarital relations by either spouse would have been penalized.
In fact, the Penal Code does not stop at punishing a man who had intimate relations with the wife of another; it goes further, criminalizing in Section 498 anyone who might enable a married woman to have intimate relations outside of her marriage.
Interestingly, the offense of adultery is compoundable, meaning that it can be compromised between the parties involved. Thus, this offense is not considered a public offense; only the husband of the woman is deemed to be aggrieved, and the prosecution typically requires a private complaint.
As must be glaringly obvious from the discussion above, this section does not provide any recourse for a woman whose husband has committed adultery with another woman. Talk about inequality!
One is reminded of Chief Justice ATM Afzal’s exposition of equality before the law, where he said : “It [equality] requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.”
Our Constitution expressly guarantees equality before the law and equal protection of the law. Article 27 stipulates that all citizens are equal under the law and are entitled to equal protection of the law, while Article 28(2) asserts that women should have equal rights with men in all aspects of state and public life.
Essentially, these provisions imply that every law enacted by the state should apply uniformly to all individuals. The question arises as to whether these sections 375, 497, and 498 operate impartially for all individuals. The answer has to be a clear “no.”
Post the commencement of the Constitution of Bangladesh, both the provisions discussed contradicts the spirit of equality embedded in the Constitution which considers all women as equal human beings, who have the right to live with dignity and free from violence -- within and outside marriage.
There remains in every citizen a fundamental right to dignity, liberty, and autonomy. Laws like these make lesser citizens of Bangladeshi wives, for even in marriage, there must be a respect for the cardinal constitutional value of equality.
Laws cannot be tools of subjugation. And let’s not brush under the carpet the fact that this provision has been used in litigation to “punish” wives and as a tool for gaining custody of children and settlement. Maybe even as a way to earn money to withdraw such cases.
There is an argument to be made for privacy as well. It must be recognized that life and liberty, being inalienable rights, are not creations of the Constitution but are rights which are intrinsic to the human condition.
Privacy also connotes the right to be left alone -- equally, for both genders, in consensual relationships. A matter of debate perhaps, but a matter that goes to the subject of personal liberty. Food for thought.
To conclude, is it in fact possible to lead a dignified life if you are treated as a second-class (or worse, a third-class) citizen?
Through maintaining such provisions as have been discussed above, statute is giving men the authority of law to be bullies.
Victorian morality that inspired these penal provisions are antithetical to constitutional guarantees of liberty, dignity, and equality. To achieve gender equality our laws must be more gender responsive.
To quote the Indian judge, Justice Deepak Misra in the case of Independent Thought: “Merely because something is going on for a long time is no ground to legitimize and legalize an activity which is per se illegal and a criminal offense.”
The law cannot legalize a form of child rape merely because the child is married; the law cannot legalize rape because a woman is a wife; and the law cannot justify treating wives as property.
But, let’s not lose hope, because the law is just and the law is dynamic and hopefully the lawmakers and changemakers are reading.
Anita Ghazi Rahman is an Advocate of the Supreme Court of Bangladesh. She can be reached at anita@legalcirclebd.com