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Conditions for Persecution of Adultery
Now, what must be understood by “conjugal house”? Chaveau et Helie give the following answer: It is the house which forms the common dwelling (ea domus in qua cum sua coniuge commaret), that, at least, where he can compel his wife to live and where she has a right to reside332 .
And what is to be understood by the words “keep a concubine”? According to the writers last quoted it is not necessary that the husband should bring a stranger into the conjugal house. Continued sexual intercourse such as constitutes concubinage with any woman other than the wife, even if she is a relative also living in the same house (as for example, a mother or sister-in-law) would constitute the crime. Nor does it make any difference that the concubine kept in the conjugal house or notoriously elsewhere, is not maintained at the expense of the delinquent husband333 .
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Conditions for Persecution of Adultery
Adultery, whether of the husband or of the wife, is one of those exceptional offences in respect of which proceedings cannot be instituted except on the complaint of the aggrieved spouse. In this crime the mediate or indirect mischief is relatively so small and, on the other hand, the moral and material damage resulting to the aggrieved spouse and the family from the publicity of a criminal trial may be so great, that the law has thought it proper to make the institution of proceedings depend on the discretion of the said spouse.
The complaint, when made, extends ‘ipso Jure’ to the adulterer or, as the case may be, to the concubine of the husband. This principle of the indivisibility of the complaint has been laid down because an opposite principle would be unjust and dangerous: unjust because it might lead to the punishment of only one of the two offenders who necessarily concurred in the same crime: dangerous, because it might screen dishonest speculations and criminal collusions334 .
332 Op. cit., Vol. II, Part II, n. 1470 333 Op. cit., n. 1639; Vide also Maino, op. cit., art. 364, para. 154, n. 6. 334 Maino, op. cit., para. 1544
