The Law Does Not Supervise Hearts!
Najeeba Jalal
Can the law act as a guardian over hearts? Is it permissible to imprison someone for loving another?
How backward we are in Morocco! We are behind when we insist on dragging citizens to prison for “adultery,” as if the state is a custodian of feelings, as if the judge has become an expert in matters of emotion, and as if the law can enforce fidelity by force.
In Morocco, Article 491 of the Penal Code still punishes adultery with imprisonment for one to two years. This crime can only be prosecuted based on complaints from the spouse, yet it remains a heavy criminal stigma, revealing that we live with a policing mentality insistent on invading the most private of spaces: the marital bed. Compare this with the civilized world:
In France, since 1975, adultery is no longer a crime. It is merely a reason for divorce and may affect alimony or the division of property. This means the law treats it purely as a civil matter.
In Belgium, the situation is similar: adultery is not a crime, but it may weaken the position of the adulterer in divorce proceedings, especially regarding property and compensation.
In the United States, there is no federal criminalization. Some states still allow civil suits against the “lover” (alienation of affection), where the wronged spouse can receive financial compensation, but there are no prisons involved.
In Canada, adultery is not a crime at all. It is a direct cause for divorce, with civil effects on alimony and custody, but without any criminal intervention.
The legal philosophy here is clear: In Morocco, the law is based on a conservative and patriarchal view that sees adultery as a threat to the entire social order, thus categorizing it as a criminal offense. In France, Belgium, America, and Canada, the law is grounded in the idea of individual freedom: marriage is a civil contract, and adultery is merely a breach of that contract addressed through divorce or compensation, not imprisonment.
This raises a fundamental question: Is it normal for someone to be imprisoned for loving another? Is the Moroccan state required to place police officers in bedrooms to protect the institution of marriage? Isn’t marriage, at its core, a relationship founded on trust and free choice, rather than fear of incarceration?
The truth is that the family is not protected by “Article 491”. The family is safeguarded by love, honesty, and mutual respect. The law has no authority over hearts. It is time to confront the reality: Article 491 is historically outdated and must be abolished. Not because we encourage adultery, but because we believe that the state is not a custodian of feelings and that marital relationships are a private matter, with no concern for the public prosecutor. Fidelity cannot be enforced through penalties, and hearts are not supervised by the law.
