Punishment for Adultery

In re The Police vs Borg Testaferrata et. 335, Harding J. held that the wife does not require the authority of the Second Hall to make a complaint for this crime against her husband.

But where the husband and the wife are judicially separated, the spouse who gave cause for such separation forfeits his or her right to make the complaint. It cannot be denied that when one of the spouses has rendered himself or herself guilty towards the other to the extent of giving cause for the pronouncement of separation, that spouse cannot invoke against the other the rigour of the law.

Punishment for Adultery

A wife convicted of adultery is liable to imprisonment for a term not exceeding one year. The same punishment applies to the adulterer. It might seem that as the nuptial bond binds only the adulterous wife, her punishment should be more severe than that of the adulterer. Our law, however, like other codes, has imposed an equal punishment because the adulteress and her partner are both co-principals in the crime and her personal condition of married woman, which is of the essence of the crime, necessarily extends to her co-principal: on the other hand it is not infrequent that the woman is instigated or seduced by the adulterer himself.

Imprisonment for a term up to one year is also imposed against the husband who keeps a concubine in the conjugal house or notoriously elsewhere, but the concubine is only liable to imprisonment for a term not exceeding nine months. Here the law has not made the punishment equal for both offenders “riflesso” as Maino says with reference to the corresponding provision of the Italian Code

"che a favore della concubina concorrono due ragioni per mitigare la pena: la mancanza del legarne infranto e la presunzione di essere stata provocata e sedotta"336 .

335 Criminal Appeal, 27/1/45 336 Ibid., art. 355, para. 1541

Exemptions from Punishment No punishment is awarded to the wife and the adulterer or, as the case may be, to the husband and his concubine, in any of the following cases:-

(a) If there has been at any time before conviction, the condonation, express or implied, of the offended party.

It is a general rule applicable in all cases in which the proceedings are instituted on the complaint of the party aggrieved that the complainant may, at any stage of the proceedings before final judgment is given, waive his complaint, (Section 55S). In case of adultery, the complainant may not only waive the complaint under this general rule, but may also, at any time before conviction, condone the offending spouse. Just as the law has left it in the hands of the aggrieved husband or wife to provoke by his or her complaint the initiation of the proceedings, so also it makes the continuance of such proceedings depend upon his or her continuing will. The community has greater interest that the spouses be reconciled than that a punishment should be imposed on an offence which, as we have seen, primarily, not to say exclusively, concerns the spouses themselves. Indeed the law is so anxious that the proceedings shall not, if possible, go on and publicise the family scandal and widen the breach between the spouses, that it presumes condonation if the offended party continues to co-habit with his or her wife or husband, as the case may be, or fails to lodge his or her complaint within six weeks from the day on which he or she became cognizant of the offence. But it must be clearly understood that in order that this presumption of tacit condonation may arise, it is necessary that it should appear that the offended spouse who continued to co-habit with the other spouse or failed to make the complaint, was aware of the offence suffered. Mere suspicion is not enough: certainty is required:

“sarebbe immorale e antigiuridico porre il coniuge che sospetti di essere offeso nella necessita’ di dar querela anche senza aver raccolto una prova sufficiente del fatto, per il timore di perdere l’azione”337 .

Condonation may also take place even after the conviction, in which case it has the effect of staying the execution of the sentence and of terminating the penal

337 Maino, op. cit., art. 356, para. 1545; confer also Criminal Appeal The Police vs Borg Testaferrata et, 27/1/45

consequences thereof, (Section 210). Ordinarily, as has already been said, the right of stopping proceedings commenced at the instance of a private party is exercisable only until final judgement is given. But here the law gives to the injured spouse the right to condone even after the proceedings have been completed by a final judgement. It is a sort of right of pardon allowed to the aggrieved husband or wife in consideration of the fact that in this matter his will and his interests are supreme, when such condonation takes place the execution of the sentence is stayed and the effects thereof cancelled: so that the judgement cannot thereafter, inter alia, serve as a basis for a declaration of relapse338 .

Finally, the death of the complaining party produces the same effects as condonation, whether in the course of the proceedings or after sentence. By the death of such party the main reason for keeping alive the proceedings or of the sentence ceases. The law here speaks of the death of the complaining spouse. It appears that the death of the offending spouse would not affect or extinguish the proceedings of the sentence against the adulterer or, as the case may be, the concubine339 .

(b) The wife and the adulterer, or as the case may be, the husband and his concubine, are also exempt from punishment if:

(i) it is proved that the complaining husband has, within the last preceding five years, kept a concubine in the conjugal house or notoriously elsewhere

or (ii) if the complainant has been convicted of any of the crimes referred to in Sections 203, 205, 212, 213, 217, 220 of the Criminal Code

or (iii) if it is proved that the complaining wife has herself committed adultery within the last preceding five years

or (iv) if the complaining husband has for upwards-of- one year and without cause deserted his wife, leaving her in want

or (v) if it is proved that the complaining husband has previously acted as procurer for his wife, or that he has tolerated, encouraged, instigated, or facilitated her prostitution.

338 Maino, loc., cit., para. 1550 339 Maino, loc., cit., para. 1551