Kuwait Court of Cassation principle number 140

Summary: - The offence of adultery. Article 195 of the Penal Code. Its material element is established whenever a man or woman has sexual intercourse with someone other than his or her spouse, consenting thereto. - Criminal intent in the offence of adultery. Its establishment. The judgment need not address it expressly and separately. The limits thereof. - The challenged judgment’s inference that the elements of adultery exist. Its import. - Whether a woman is considered married or divorced is determined by the actual date of divorce. Its effect: calculation of the waiting-period dates. Rule: The material element of the offence of adultery prescribed by Article 195 of the Penal Code is established whenever a man or woman has sexual intercourse with someone other than his or her spouse, consenting thereto. The criminal intent required for this offence is established by the perpetrator’s knowledge and will being directed towards committing the act constituting the offence, namely sexual intercourse. The law does not require the judgment to address this intent expressly and separately, so long as the facts and circumstances it sets out sufficiently indicate its existence. The challenged judgment inferred from the previously stated evidence that the appellant, who was married to another person, had a sexual relationship with the second accused, thereby establishing the elements of adultery as defined by law, which the judgment established against her and of which it convicted her. This provides a partial answer to her plea that those elements were absent. This is not undermined by the appellant’s assertion that her divorce date was 7/10/2009, indicating that her waiting period had ended before the day she was apprehended. The documents establish that 15/10/2009 was the date of her actual divorce from the victim, which is the date relevant to calculating her waiting period, after her action No. 180 of 2010, Farwaniya Personal Status, on which she relied in this regard, was dismissed and the latter date, 15/10/2009, recorded in her divorce certificate issued by the Sharia Authentication Department, was upheld as correct. Accordingly, the appellant’s waiting period had not ended, and she remained the victim’s wife on the date of apprehension, 10/1/2010. The challenged judgment adhered to this, and the appellant’s arguments in this respect are unsound.