Legal status of ‘living together'

We have mainly the "Penal Code (Act of XLV of 1860)" to define the offences and to determine the penalties thereof. Some minor Acts have also been adopted in the course of time to complement and supplement this Code. Having gone through the Penal Code we found very few Sections like 375, 493 and 497 which speak about the provisions of sexual intercourse without marriage amounting to an offence.

From the conception of the section 375 of the Penal Code, sexual intercourse without marriage between a male and a female (of above 14 years) amounts to rape where the 'will' or 'free consent' of the female is absent. Therefore, living together, where both the will and consent of the female exist, remains unhindered by the provision of this Section.

The section 493 of the Penal Code deals with the offence of cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Here the man by deceit causes a woman, who is not lawfully married to him, to believe that she is lawfully married to him. But cohabitation without such deceitful inducement faces no constraint from this Section of the Code.

The Section 497 of the Code defines and penalises the offence of 'Adultery' and is seemingly very relevant to our discussion. This section imposes an indirect demarcation on living together. As to the provision of this section, sexual intercourse with a woman married to another man, without consent of that man (but with the consent of the woman), becomes the offence of adultery. (Interestingly, the wife shall not be punishable as an abettor). Therefore, voluntary sexual intercourse with a woman not married to anybody does not amount to adultery.

From the above discussion, it can be inferred that the voluntary and mutual living together or cohabitation or sexual intercourse with an adult female not married to any person is legally unrestricted. The only legal restraint on it imposed by Section 290 of the Code is a maximum of Tk 200 fine if it creates any annoyance to the public or people in the vicinity as to the definition of 'public nuisance' under Section 268. Is that enough? Should this so called 'living together' be gone legally unchecked? If so, should we cope with the situation described below?

Being doubtful a policeman knocks at the door. To the query of the policeman if the couple replies that they are unmarried and living together, the policeman has nothing to say. On the contrary, if the couple replies that they are married only then the policeman may raise issues to be inquired into like if the marriage is the second one and so on.

The Penal Code was adopted about 146 years back by the British rulers. What is for use in one society might be for abuse in another society. What was benign to then British society may not necessarily be same to our present social values. In the western culture actions like living together are encouraged and do not amount to an offence. But these are undoubtedly malignant to our social values and should be brought under legal structure. And hence, the so called living together can be the subject of amending the definition of adultery under section 497 of the Penal Code.