Section 68

A man and a woman are said to commit zina if they willfully had sexual intercourse without being validly married to each other or such intercourse is not syubhah intercourse.

Explanation — Penetration by hasyafah or qadar thereof is sufficient to constitute the sexual intercourse necessary for the offence of zina.

In this section —

“syubhah intercourse” means a sexual intercourse performed with a persumption that it is a valid marriage but in actual fact the marriage is not valid (fasid) or sexual intercourse occurred by mistake;

“sexual intercourse occurred by mistake” means sexual intercourse between a man and a woman on the assumption that the woman is his wife and the man is her husband, when in actual fact she is not his wife and he is not her husband.

Illustration

At night, in the dark, A and B have sexual intercourse. A thinks B is his wife and B thinks

A is her husband, when in fact B is not A’s wife and A is not B’s husband. A and B did not commit the offence under this section.