Publication

An act may be immoral, or better still sinful, but yet not criminal. However, adultery is one of those acts under our criminal jurisprudence that appears to have a criminal liability in some jurisdictions in Nigeria.

Recently, the Nigeria Police Force charged Mr Hamza, 34, of Zaman Gida, Asokoro, Abuja, at a Grade I Area Court in Karu, Abuja, with Adultery.  The defendant was arrested after he was caught by his lover’s husband while having consensual sex on the couple’s premises. Hamza was remanded in prison without bail while awaiting trial, reported People’s Gazett.

In Nigeria, Adultery is a crime only in the jurisdiction where the penal code applies. As a result, the criminal jurisdiction is divided into southern and northern jurisdictions. In the South, where the criminal code is applicable, adultery is not recognized as a crime - see the case of Aoko vs Fagbemi ( 1961 ) 1 ALL NLR 400. Whereas, in the North, where the penal code also applies, it is considered a crime. See Sections 387 and 388 of the penal code, which stipulates two years imprisonment or fine as punishment for the offense of adultery.

In the case of Ibeabuchi vs Ibeabuchi (2016) LPELR-41268(CA), Adultery was defined as consensual intercourse between two persons of the opposite sex, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage.It must be noted that adultery is grounds for divorce across the board throughout the country, whether the marriage was customary, Islamic, or English (statutory) in nature. Nevertheless, most adulterous cases that occur in the north often carry an element of hypocrisy when only one party is criminally charged in court, as in the case of Hamza.

As stated above, there are legal regulations geared towards maintaining or safeguarding the sanctity and sacredness of marriage and putting to check conduct deemed not only sinful and criminal but offensive to public morals. Hence, the law needs to do more via the constitution to address the regional discrepancies in the area of criminal liability and to provide adequate remedy to the innocent spouse.

The sanctity of marriage should be respected for all our sake.