SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

2.4 (De)criminalization of sex outside marriage
Sri Lanka, Nepal and Thailand do not criminalise adultery. However, as mentioned later,
adultery is a ground for divorce in these countries. 165
The Penal Code of Thailand does not contain a punishment for adultery. Under its Civil and
Commercial Code, however, there is an interesting aspect of regulation of sexual activity.
Under Thai marriage laws, persons above the age of 17 (or where they are younger with the
consent of parents or guardians) may be betrothed. 166 This is done based on the man giving
the woman some form of property; however, the betrothal does not create an obligation of
marriage and any agreement to pay a penalty in breach of a betrothal agreement is void. 167
The law provides that if there is an “essential event” that happens to the betrothed woman
that makes the marriage to her unsuitable, then the betrothal agreement may be renounced
and in such cases the man may claim compensation from another man who has sexual
intercourse with the woman knowing or who should have known of her betrothal. 168 Thus, the
essential event includes sexual intercourse with another man. It may also include rape, as the
betrothed man may, without renouncing the agreement claim compensation from a man who
had or attempted to have sexual intercourse with the betrothed woman against her will
knowing or should have known about the betrothal. 169
Interestingly, where an “essential event” happening to the betrothed man that makes marriage
to him unsuitable also allows the betrothed woman to renounce the agreement but the law
does not allow her to claim compensation from another woman. Both parties are required to
pay compensation to the other person if there is gross misconduct on their part leading to the
renouncing of the agreement – this likely includes sexual intercourse with another person. 170
In Indonesia, the Penal Code prescribes a maximum punishment of nine months for married
men and women as well as the persons they committed adultery with. However, a prosecution
under the law can only be instituted by the “insulted spouse” and the complaint may be
withdrawn as long as judicial investigation has not commenced. 171 Several reports on a newly
enacted law in the Aceh province of Indonesia also note that the law punishes adultery with
stoning. 172 However, a verifiable English translation of this new law was not available for the
purposes of this review.
In India and Bangladesh, adultery is punishable only when the woman commits it. Both
countries have identical provisions in Sections 497 and 498 of the Indian and Bangladeshi
Penal Codes. Section 497 provides that, “whoever 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, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with both. In such case
the wife shall not be punishable as an abettor.” Thus, a married man who commits adultery
165 Ibid.
166 Section 1435, Civil and Commercial Code, 1925 (Thailand)
167 Section 1438, ibid.
168 Section 1445, ibid.
169 Section 1446, ibid.
170 Section 1444, ibid.
171 Article 284, Penal Code, 1982 (Indonesia).
172 See ‘Aceh Passes Adultery Stoning Law,’ BBC News, 14 September 2009.
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