When one critically examines the legal ingredients of what constitutes adultery, it appears that a man cannot commit adultery. Hence, this article explores what constitutes adultery in the legal sense. This is done by examining the holy books, and statutory and judicial reasoning on what constitutes adultery.
Adultery defines
The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”.
The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.
In the Holy Bible, Jesus affirmed the commandment against adultery and even expanded it, saying, “But I say to you, anyone who looks on a woman to lust after her has committed adultery with her already in his heart.” He taught his audience that the outward act of adultery does not happen apart from sins of the heart.”
Jesus’s principle on adultery says that even where there is no sexual intercourse between the said parties, it still amounts to adultery. This is different from the legal perspective on what constitutes or the elements of adultery.
This notwithstanding, the Old Testament in Leviticus 20:10 defines what constitutes adultery in the Hebrew Bible, and it also prescribes the punishment as capital punishment. In this verse, and the Jewish tradition, adultery consists of sexual intercourse between a man and a married woman who is not his lawful wife:
And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbor’s wife, the adulterer, and the adulteress shall surely be put to death.
This means in Leviticus, adultery can only happen to a married woman. The adjective married was not attached to a man.
Also in the Hebrew Bible, adultery is not committed if the female participant is unmarried (unless she is betrothed to be married (–Deuteronomy 22:2327), while the marital status of the male participant is irrelevant (he could be married or unmarried to another woman). This means a married man having sexual intercourse with a married woman amounts to adultery. Additionally, an unmarried man having sexual intercourse with a married woman amounts to adultery.
Finally, a married man having sexual intercourse with un married woman is not adultery- see Leviticus 20:10.
Probably, Jesus realized the gap created in the Old Testament on adultery and thought it was discriminatory towards married women only and had to expand on it in the gospels.
So in Matthew 19:18, and Mark 10:19, Jesus affirmed the commandment against adultery and seemed to extend it in Matthew 5:28 (NASB) saying, “But I say to you, anyone who looks on a woman to lust after her has committed adultery with her already in his heart.” The important word here is ‘lust’-have strong sexual desire for the woman. This means once you perceive that you wish to do something with this woman amounts to adultery.
This departed from the Old Testament principle on adultery which places the obligations on only the married woman having sexual intercourse with either a married or unmarried man. It further departed from judicial elements of adultery which constitute ‘penetration’- anything apart from this does not amount to adultery in law.
Jesus further said outward act of adultery does not happen apart from sins of the heart in Mark 7:21–23 (NAB), see also Matthew 15:19–20: “From within people, from their hearts, come evil thoughts, unchastity, theft, murder, adultery, greed, malice, deceit, licentiousness, envy, blasphemy, arrogance, folly. All these evils come from within and they defile.”
However, some commentators, including Thomas Aquinas, say that Jesus was making the connection with the commandment, “You shall not covet your neighbor’s wife.” (Exodus 20:17, Deuteronomy 5:21). The Old Testament was particular about a man having sexual intercourse with another man’s wife and not a man having sexual intercourse with an unmarried woman.
Let us also examine the Quran: “Adultery is defined as sexual intercourse by a person whether man or woman, with someone to whom they are not married.” Adultery or extramarital sex is considered the infringement of a matrimonial bond and is regarded as one of the foremost crimes condemned by Allah. The Quran is very emphathic on who is capable of committing adultery.
Legal meaning of adultery
Moving from the Holy Books, let us examine adultery in the context of the law made by man. In Ghana, The Matrimonial Causes Act, of 1971 (Act 367), governs the law on divorce. On what constitutes adultery –it states:
Adultery may be defined as voluntary sexual intercourse between two persons of whom one or both are married but who are not married to each other. It is important to note that if you are the Petitioner, you cannot rely on your adultery. For Adultery to be proven, there must be at least partial penetration.
The meaning of adultery within case law is:
o A married man having sexual intercourse with a woman other than his wife; or
o A married woman having sexual intercourse with a man other than her husband.
Surprisingly, this means that a person has not committed adultery in an extramarital relationship where there is no sexual intercourse.
Is adultery a crime?
From the Holy Bible, if a married woman was raped by a man who is not her husband, only the rapist is punished for adultery. The victim is not punished: as the Bible declares, “this matter is similar to when a man rises against his fellow and murders him”; just as a murder victim is not guilty of murder, a rape victim is not guilty of adultery (Deuteronomy 22:26).
But Jesus departed from the criminal aspect of adultery in the Old Testament. In the gospel of John, Jesus gave an account of a woman caught in adultery. Leaders responsible for executing justice brought her to Jesus and asked for his judgment. Jesus identified adultery with sin; however, his statement “Let him who is without sin cast the first stone” did not refer to the principles of law but to conscience.
Some commentators point out that if the woman was caught in adultery, there should also have been a man standing trial. The law clearly stated that both parties were to receive the death penalty. By not bringing the guilty man to justice, these leaders shared in the guilt and were not fit to carry out the punishment. Not condoning her adultery, Jesus warns the woman in parting, “Go and sin no more” see John 8:11 (ESV).
Post Jesus, the Apostle Paul also had this to say on adultery:
Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.
—?1 Corinthians 6:9–11 (ESV) See also 1 Thessalonians 4:3–7
The Quran also tries to enforce sexual morality to the core and anyone who is found guilty of fornication is punished with one hundred lashes and a married Muslim who is found guilty of adultery may be stoned (rajm) by a group of Muslim believers until that person dies to send a clear warning to wannabe adulterers.
Departing from the Holy books, in the legal context, if one examines the international perspective, trends worldwide indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for divorce laws, see Joseph Shine v. Union of India where the Supreme Court on 27th September 2018 departed from the statutory position that adultery was a crime.
In treating adultery as a crime, the Court held that the State interfered with people’s personal lives and crossed over into the private realm, and after the act of adultery, the husband and the wife should be allowed to make a mutual decision based on their discretion. Thus, it is unconstitutional.
Also, since the introduction of the Matrimonial Causes Act in 1857, adultery has not been a crime in the United Kingdom. However, that does not mean that it’s acceptable. Adultery used to be one of the five grounds to cite a divorce. However, this is no longer the case. Additionally, in Ghana and the Gambia, no law criminalizes adultery and fornication.
Divorce my partner for adultery?
According to the gospels, Jesus quoted the book of Genesis regarding the divine origin of the marriage relationship, concluding, “So they are no longer two, but one flesh. Therefore, what God has joined together, no man must separate.” See Matthew 19:6 (ESV)
Jesus dismissed convenient provisions allowing for divorce for nearly any reason and cited sexual immorality (a breaking of the marriage covenant) as the only reason why a person may divorce without committing adultery. See Matthew 19:9, Mark 10:11, 12, Luke 16:18.
The Apostle Paul also said in –1 Corinthians 7:1015 RSV (commonly called the Pauline privilege):
To the married I give charge, not I but the Lord, that the wife should not separate from her husband … and that the husband should not divorce his wife. To the rest I say, not the Lord, … But if the unbelieving partner desires to separate, let it be so; in such a case the brother or sister is not bound. For God has called us to peace. Paul means if one partner desires to divorce in the name of peace, let the person do it.
In the legal context, the Indian Supreme Court rules in Joseph Shine v. Union of India, 2018 SCC reasoned that there can be no shadow of a doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage.
In the Ghanaian case of Gloria Odartey Lamptey vs. Nii Odartey Lamptey (Suit No. Bdmc 454/2013 (Unreported) 6), the Ghanaian footballer won the case of cheating against the wife. The court also declared that the three (3) children of the household were not the Respondent’s biological children. This declaration was based on the adulterous relationship of the Petitioner who had birthed these children. This was expressed by Her Ladyship as follows:
“But what is undisputed which supports an order for divorce is the adultery allegation of the respondent. The evidence is undisputed, backed by Exhibit ‘1’, the results of a deoxyribonucleic acid (DNA) test which indicates that the children, Latifah, Kadijah, and Moesha Odartey Lamptey are not biologically, the children of the respondent, and the circumstances of the case lead me to make a finding that the children were procreated in adultery.”
In respect of the DNA results, the court relied on Hume v Hume & McAuliffe [1965] Times, Feb 25 as cited by the learned Ghanaian author, William E. Offei wherein he stated that “A finding of adultery was made against a wife on the evidence that she had given birth to a child of whom blood tests established that the husband could not be the father”
Also in an Indian High Court case, Anusha Kumari vs. Rohan on 5 December 2017, the husband alleged that his wife gave birth to a child during a period when he was away from home and had no physical relationship with her. The trial court directed them to undergo a D.N.A. test. The Patna High Court upheld it.
In Ghana, the Matrimonial Causes Act, 1971 (Act 367)-Section 2(1) (a) of Act 367 states:
“… the Respondent has committed adultery and that by reason of the adultery, the petitioner finds it intolerable to live with the Respondent”.
Grounds for divorce
Previously, adultery was one of five grounds for divorce in the United Kingdom and Ghana and others, all arising from an “irretrievable breakdown” of the marriage. It appears that grounds for divorce appear ubiquitous:
o Living apart for more than two years (with the consent of divorce);
o Living apart for more than five years (with no consent of divorce);
o Desertion;
o Unreasonable behaviour; and
o Adultery.
However, since the implementation of no-fault divorce, you no longer need to cite a reason when filing for divorce. Although, that’s not to say that adultery can’t be a reason why you want a divorce. Now, you just don’t have to prove it.
Legal ingredients of adultery
To constitute the offense of adultery, the following must be established:
(i) Sexual intercourse between a married woman and a man who is not her husband;
(ii) The man who has sexual intercourse with the married woman must know or have a reason to believe that she is the wife of another man;
(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;
(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.
Looking at these ingredients in the India case, a wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The law does not make it an offense for a married man to engage in an act of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC.
Also, looking at the first element means a man cannot commit adultery. Adultery can only be committed by a married woman who had sexual intercourse with an unmarried man who knows she is married. So in the case that the unmarried man is unaware that the woman is married means no adultery committed.
It also means that adultery can only be committed when there is sexual intercourse, anything apart from that means no adultery. This fortifies the Canadian case of P. (S.E.) v. P. (D.D.) 2005 BCSC 1290 (CanLII), where the court defined adultery as intimate sexual activity outside of marriage, regardless of the specific nature of the sexual act performed. Cybersex or sexting, however, while emotionally devastating to the other spouse or partner, does not reach the level of intimacy necessary for it to function as adultery under the Divorce Act.
In the Gambia case of Abdoulie Drammeh v. Joyce Drammeh (1970), the privy council Appeal reasoned that once there is no sexual intercourse between the man accused of adultery and the co-accused before their subsequent marriage in the Mohammedan faith, it can not be construed as adultery.
Also, another principle from this case is that a monogamous marriage under the Christian faith cannot prevent the Man from marrying another woman under the Mohammedan faith. However, since the previous marriage was contracted under the Christian faith, the first wife could treat the second marriage the husband contracted under the Mohammedan faith as adulterous.
How can I prove adultery?
Legally, adultery only covers sexual intercourse, which means behaviors such as kissing, webcam, virtual, and “emotional adultery” do not count toward getting divorced. This makes adultery very hard to prove if your spouse will not admit to it and I justify herein with some Indian cases.
In Rajee vs. Baburao on 11 August 1995, the husband alleged that he saw his wife talking with another person on three occasions. The lower court convicted the accused in this case. However, the Madras High Court set aside the lower court judgment, saying all three meetings were during the daytime and at a time when all the three grown-up children were in the house.
Also, in Subrata Kumar Banerjee vs Dipti Banerjee on 4 June 1973, the man alleged that his wife had left for New Alipore with her children and another man and complained of adultery. The court ruled that no evidence of sexual intercourse with another person was observed to be considered adultery.
Furthermore, in Samuel Bahadur Singh vs. Smt. Roshni Singh And Anr. on 31 August 1959, the court was satisfied that there was proof of illicit affection coupled with an opportunity to have committed adultery. The court, however, said that it was not satisfied that the evidence on record was sufficient to come to any positive conclusion that a child had been born to the woman after she had left her husband’s shelter.
Alternatively, to enforce capital punishment for adultery, at least two witnesses were required, and both the man and woman involved were subject to punishment. While cases of adultery could thus be difficult to prove, divorce laws added over the years enabled a husband to divorce his wife on circumstantial evidence of adultery, without witnesses or additional evidence.
The easiest way to prove adultery is for the unfaithful person to admit it. However, it’s easier said than done, with most people being unwilling to admit their unfaithfulness.
Just as I highlighted supra, you no longer need to cite a specific reason – like adultery – when filing for a divorce. Therefore, finding proof is no longer required once you can prove the marriage has broken down beyond repairs.
Adultery committed even in the process of divorce
The Indian Supreme Court further ruled in Joseph Shine v. Union of India, 2018 that in the case where there is a pending divorce proceedings involving a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If during this period, she has sex with another man, the other man is immediately guilty of the offence.
Also in M.Chinna Karuppasamy vs Kanimozhi : on 16 July, 2015,
the Madras High Court reasoned that even after the decree of divorce, the divorced wife carries the obligation not to live in a relationship with any other man.
Take home
It is interesting to note that adultery can only be committed when the two parties voluntarily engage in sexual intercourse. Without penetration, there is no case of adultery. So even when your partner denies sexual intercourse with the other partner, it is difficult to accuse your partner.
Secondly, though some countries have adultery laws that make it a crime, it is not enforceable. In Ghana and Gambia, adultery is not a crime but it could be used as a case for divorce if you can demonstrate that the marriage has broken down and is beyond repair. I think these changes were orchestrated by Jesus’s principle “Go and sin no more” see John 8:11 (ESV).
Thirdly, from most of the changes in statutory provisions, a man and woman can all commit adultery but the jurisdiction matters- see the Gambia case of Abdoulie Drammeh v. Joyce Drammeh (1970).
Prof. Raphael Nyarkotey Obu is a full Professor of Holistic Medicine. President, Nyarkotey University College of Holistic Medicine & Technology, Ghana. E-mail: [email protected]. This article is for educational purposes.
