Provocation as a result of adultery and its legal effects: A Study of Bahraini and Comparative Laws

Abstract

This paper finds that provocation is the outcome of the Modern Classical School (Neoclassical School), and is associated with anger which unconsciously affects one’s freewill but does not limit one’s liability although it could be a reason to mitigate punishment. In the study’s examination of provocation, it has been concluded that provocation is independent and different from general provocation in terms of components, reasons, and applicable rules that determine the extent to which punishment could be mitigated. It was also clarified how different it is from self-defense and mitigated circumstances. In the process of examining the private scope of provocation, it was found that some legislations grant limited liability as a result of provocation only to the husband. Other jurisdictions grant limited liability as a result of provocation to the wife and her male relatives. This paper criticizes these jurisdictions that did not recognize limited liability in relation to the wife and her male relatives. The legislative approach which limits this excuse to certain category of persons was also criticized. The paper argues that an objective scope has to be defined. Moreover, courts have to ensure that marriage was valid when the act was committed and refer to the existing laws to regulate the marital relationship. Finally, the surprise element has to be addressed in addition to its conditions and the concepts of being caught in the act of adultery and immediate abuse. As with regard to the legal effects of provocation, the study clarified how it is considered a personal and private legal excuse, along with its effect on the classification of the committed crime, on the judge’s discretion power and on the involved persons.