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Adultery by Husband
aggressor is clearly not guilty of any crime; she is rather the victim of rape. The mental element is also negatived where one of the parties to the act is induced in error as to the married condition of the partner, or believes in good faith and upon reasonable grounds that he or she is himself or herself free from the bond of marriage:
"non risponderà di adulterio la persona coniugata che all'atto dell'illecita relazione avesse giusta ragione di credere sciolto per morte dell'altro coniuge il matrimonio, e neppure colui che abbia relazione con donna maritata della quale ignori la condizione"331 .
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Adultery by Husband
To constitute the crime of adultery by the wife the fact of one single carnal connection is sufficient. It is enough that she has yielded her body to another man, in any place whatever and even if only once. But for the incrimination of adultery by the husband the law requires certain special conditions. The mere sexual intercourse with another woman is not punishable unless the relation formed has acquired the character of being habitual and more or less stable so as to constitute “concubinage” . In fact, Section 207 imposes a punishment on the unfaithful husband if he “keeps a concubine in the conjugal house or notoriously elsewhere” . The reason usually given to explain the differentiation is that the act of adultery of the husband occasions less serious consequences than that of the wife, which renders uncertain the status and legitimacy of the issue and may saddle the husband with children that are not his. It is only when the husband not only forgets his pledged troth to his lawful wife but also inflicts on her the indignity and humiliation of having a rival in the conjugal house or witnessing the setting up by the husband of a sort of a second family elsewhere, that the aberration of the husband acquires sufficient gravity to call for a penal sanction.
Therefore, for the punishment of adultery of the husband, occasional facts of illicit sexual intercourse are not sufficient; nor is any illicit relation whatever sufficient. It is necessary that he keep a concubine living with him as his ‘wife’, in the conjugal house or notoriously elsewhere, forgoing a stable and continuous relation.
331 Pessina, op. cit., Vol. II, p. 312; Maino, op., art. 353, para. 1535
