Historical Background
| Published date | 01 April 1978 |
| Date | 01 April 1978 |
| DOI | 10.1177/002201837804200206 |
| Subject Matter | Article |
This
study
will focus on a comparative analysis based on
the
chosen
adultery
laws
both
in
common
law
and
civil law influenced
systems. Islamic law on
adultery
will also be discussed since
the
law is
still widely practiced in Moslem nations despite
adoption
of
the
Western Codes.
Another
topic
relates to
adultery
in
Communist
systems. In
short,
the
States
whose laws will be discussed in this
study
are chosen because:
(1) their laws have
been
widely
adopted
by
other
nations;
(2)
their
laws are influenced by religions; or
(3) their laws
contrast
the
laws
of
the
first
two
groups.
II. HISTORICAL BACKGROUND
Adultery
in
Common
Law -
The
Roman
law which influenced
both
Common
law
and
modern
Civil law" systems distinguished
between
illegitimate sexual relation
of
amarried
woman
and
that
of
amarried
man,
and
only
considered
the
former as adultery."
Therefore,
adultery
was defined as having a sexual intercourse
with
'another
man's
wife'.8
In such a case
whether
the
paramour
was a single man or a married
man
would
not
make
any
difference,
either
one
would
be guilty
of
adultery. On
the
other
hand,
amarried
man's
sexual intercourse
with
a single
woman
was
not
considered as adultery," In
Common
law,
although
the
Roman
law
concept
of
adultery
may
have
been
influ-
ential,
adultery
was
not
considered as a crime.I? However, ahusband
who
wanted
adivorce
through
Parliament had to establish acriminal
action first based on his wife's adultery.
The
civil suit for damages was
only accepted from ahusband. A wife
could
not
bring suit for damages
against an
adulterous
woman
because
of
her illicit intercourse with her
husband.11
Unlike
the
Roman
law doctrine,
the
English ecclesiastical law
favoured adifferent approach
and
defined
adultery
as
'the
inconstancy
109
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