Kuwait Court of Cassation principle number 142

Summary: - The offence of adultery. Institution of criminal proceedings for it is conditional upon submission of a complaint. Article 109 of the Code of Criminal Procedure and Trials. - Article 197 of the amended Penal Code. Its import: the aggrieved spouse in the offence of adultery may prevent the institution of criminal proceedings or suspend execution of the judgment against the adulterous spouse, whether male or female. Conditions thereof. Where they are satisfied, Article 194 of the Penal Code does not apply. Effect: a bar to punishing the offending spouse for consensual sexual intercourse. The challenged judgment's adherence thereto: sufficient to answer the plea that no complaint was submitted and a correct application of the law. Rule: Although the institution of criminal proceedings for adultery is conditional upon submission of a complaint by the aggrieved spouse pursuant to Article 109 of the Code of Criminal Procedure and Trials, Article 197 of the Penal Code, as amended by Law No. 46 of 1960, provides: "The aggrieved spouse in the offence of adultery may prevent the institution of criminal proceedings against the adulterous spouse, whether male or female, and the partner in adultery, provided that the aggrieved spouse accepts marital cohabitation as it was. That spouse may halt the proceedings at any stage of the case and may also suspend execution of the final judgment by consenting to the continuation of marital life. If the aggrieved spouse prevents the institution of criminal proceedings, halts the proceedings, or suspends execution of the final judgment, the provisions of Article 194 shall not apply." The import of this provision—in its wording following amendment and according to the settled jurisprudence of the Court of Cassation—is that it implicitly repealed the requirement in the aforementioned Article 109 of the Code of Criminal Procedure and Trials for a complaint by the aggrieved spouse in an adultery case. The legislature did not make institution of that case conditional upon a complaint by the aggrieved spouse and imposed no restriction on the Public Prosecution's authority in this regard. On the other hand, to achieve the purpose sought by that provision, namely, as stated in the Law's Explanatory Memorandum, concealing matters affecting honour and preserving the children's rights, it granted the aggrieved spouse the right to prevent institution of criminal proceedings against the adulterous spouse. It also empowered that spouse, by waiver and consent to the continuation of marital life, to halt the trial after proceedings have been instituted and at any stage thereof, and even granted the right to suspend execution of the final judgment rendered therein. It also made the occurrence of any of those matters a bar to punishing the offending spouse for the offence of consensual sexual intercourse provided for in Article 194 of the Penal Code. Accordingly, since the challenged judgment adhered to the foregoing view and rejected the plea of inadmissibility of the criminal proceedings because the law did not require a complaint by the aggrieved party, the first appellant's wife, to initiate adultery proceedings—contrary to the first appellant's assertion—it correctly applied the law, and the first appellant's criticism of the judgment in this respect is unfounded.