By Oluwayanmife Ayobami
Adultery is a topic that often sparks controversy and raises questions about its legal implications. In Nigeria, a country with diverse cultural and religious backgrounds, the perception and treatment of adultery vary across different regions.
This article aims to provide a clear understanding of the legal perspective on adultery in Nigeria, focusing on the distinction between the Northern and Southern parts of the country.
What is Adultery?
Adultery refers to the voluntary sexual intercourse between a married person and someone who is not their spouse.
According to the case of Ibeabuchi V. Ibeabuchi adultery can be defined as ‘consensual intercourse between two persons of opposite sexes, 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’
Adultery in the Northern Nigeria
Under the Penal Code and Sharia law, adultery is punishable by imprisonment for up to two years and/or a fine. According to Sections 387 and 388 of the law, if someone is found guilty of adultery, they can be sent to prison for two years or be required to pay a fine.
These laws are based on religious and cultural beliefs prevalent in the Northern states. It is crucial to understand that the application of these laws is limited to the Northern region, and they do not extend to the Southern states.
Adultery in the Southern States
In the Southern states of Nigeria, adultery is not considered a criminal offence. Instead, it is viewed as a matrimonial wrong that can be grounds for divorce.
The Supreme Court established this principle in 1961 in the case of Aoko v. Fagbeyemi. The court ruled that a woman accused of cheating on her husband could not be convicted of adultery in the southern states of Nigeria because there was no written law that made adultery a crime in those states.
This case is an important example that highlights the constitutional principle that a person should not be punished for an offence that is not specifically defined as a crime in a written law.
According to Section 36(12) of the 1999 Constitution, a person cannot be convicted of a criminal offence unless that offence is clearly defined and the penalty for it is prescribed in a written law. This includes laws passed by the National Assembly or the State, as well as any subsidiary legislation or instrument created under those laws.
Adultery leads to divorce
Section 15(2)(b) of the Matrimonial Causes Act provides individuals with the right to seek a divorce if they find it intolerable to continue living with a spouse who has committed adultery. It specifically states:
“ The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent”
However, it is important to note that the accusation of adultery must be based on evidence and not mere suspicion or speculation.
According to Section 31 of the Matrimonial Causes Act, if one party in a marriage can prove that their spouse committed adultery and the act was not forgiven or condoned, they can seek damages.
Damages awarded for adultery are compensatory and take into account factors such as the loss suffered by the petitioner, injury to their honour and feelings, hurt to family life, and the value of the adulterous spouse to the claimant. It is worth noting that damages can also be claimed against the third party involved in the adultery.
However, it’s important to note that the claim for damages must be made within three years of the adultery taking place.
The legal perspective on adultery in Nigeria varies depending on the region. While adultery is considered a criminal offence in the Northern states under the Penal Code and Sharia law, it is not a crime in the Southern states.
Instead, adultery is seen as a matrimonial wrong that can be grounds for divorce. It is essential for individuals to understand the legal framework surrounding adultery in their respective regions to navigate the legal implications effectively.
