DIVORCE AND ADULTERY

Published by The Daily Star on 4th November, 2014 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
We got married in mid-2009 and were happily married since then. However, for the last few months, I have discovered significant evidence, which indicates that my husband is involved in an extra-marital affair with another woman. I have first received proof of this incident in May of this year. I have made up my mind to seek divorce from him as I do not wish to continue our marriage any longer in such circumstances.  No child has been born out of our marriage. I request your kind help regarding the following queries:
1.    What constitutes adultery in the legal sense? What proof is required?
2.    What is the punishment (if any) for a person who has committed adultery?
3.    Can I seek divorce in the present circumstances?

Anonymous.

Response
I would like to thank you for soliciting advice in this regard. Upon receipt of the query I have understood that your husband is having an extra-marital relation with another woman, but as there is no specification of whether the other woman is married or not, I will discuss various different scenarios regarding this.
Adultery is a very common phenomenon in the Western world, however, over the past few years, it has become a much talked about subject in Bangladesh. I can understand the feelings of you and your family.
Adultery, in Bangladesh, is considered as a criminal offence which is dealt in Chapter XX (Offences relating to Marriage) of the Penal Code 1860. Section 497 of the Penal Code 1860 not only lists the punishment that one might face for committing adultery but also specifies the elements required to be proved to punish someone for adultery. It says if a person 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 shall be guilty of adultery. However, if a man has sexual intercourse with a woman knowing and/or believing that she is the wife of another man and does so without the consent of the woman, herself, that would amount as rape and such person shall be tried under the laws of Bangladesh in relation to rape.  But that is a different scenario all together.
To establish that a person has committed adultery, the essential and deciding criteria that needs to be proved is that the person had sexual intercourse with a married woman without the consent or connivance of the husband of that woman. In a case, it was the decision of the Bangladeshi Court of law that adultery cannot be committed with unmarried woman, widows or prostitutes. For your reference I am, hereby, citing the case (Nurul Huq Bahadur vs Bibi Sakina and another 1985 BLD 269)
Therefore, if your husband is having an extra marital relation with an unmarried woman, then he has not committed adultery. Moreover, your husband needs to have sexual intercourse with that woman, otherwise his actions will not be considered as adultery.
You said you have direct evidence which proves that your husband is having an extra-marital relation. But if none of the evidence shows that there has been a sexual intercourse between your husband and that woman and that the woman was married, your husband will not be guilty of adultery then.
Assuming that your husband has had sexual intercourse with another married woman, if such claim can be proved in the court then your husband will be punishable with either an imprisonment for a maximum period of five years or he may be subject to a fine. There are even instances when the person guilty of committing adultery may face both imprisonment and fine as a form of punishment.
So far as divorce is concerned, under the Dissolution of Muslim Marriages Act, 1939 you can obtain a decree from the court for dissolution of marriage if your husband treats you with cruelty by being associated with women of evil repute. However, it is very likely that in the kabin-nama, clause no. 18 the right to divorce has been delegated to you already. Hence, you can easily invoke your right under the kabinmama and divorce your husband, if you so wish. In such case you need to go through the court process and you need not show any reason thereto, unless prescribed in clause 18 of the kabin-nama.
I hope you will have answer to your quires from the aforesaid opinion.

For detailed query contact: omar@legalcounselbd.com.