PHILIPPINE JURISPRUDENCE ON ADULTERY

Is the presence of a ground for declaration of nullity of marriage a valid

defense? No.

[W]e are of opinion that in the absence of proof of a formal judicial

decree declaring the nullity of the second alleged bigamous marriage
the acts complained of constitute the crime of adultery.

Article 433 of the Penal Code, defining and penalizing the crime of
adultery, is as follows:

Adultery shall be punished with the penalty of prision

correccional in its medium and maximum degrees.

Adultery is committed by the married woman who lies

with a man not her husband, and by him who lies with
her knowing that she is married, although the marriage
be afterwards declared void.

It is quite clear from the peculiar phrasing of the last paragraph of

this article, that the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it
should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures
a formal judicial declaration to that effect. The reason for this
provision is thus stated by Groizard, in his commentary upon similar
provisions contained in article 488 of the Spanish Penal Code of 1870:

At no time does the bond of matrimony contain a defect

which by itself is sufficient to dissolve the union. The
marriage must be declared to be null in order that the
bond may be severed. Until it is so declared, until by
competent authority in a final judgment the marriage
contract is set aside, the offense to the vows taken, and
the attack on the family exists - the adultery reunites the
essential conditions required for its punishment. This
abundantly satisfies the reason and furthermore is
expressly set out in our statute.

(The United States vs. Jacinta Mata, et. al., G.R. No. L-6300, March 2,
1911)

Is direct evidence necessary? No.

The nature of the crime of adultery is such that it will not be often
when it can be established by direct evidence. Nevertheless, strong
circumstancial (sic) and corroborative evidence such as will lead the
guarded discretion of a reasonable and just man to the conclusion
that the alleged act has been committed is sufficient to sustain a
conviction for adultery. (5 Groizard, Codigo Penal, pp. 24 et seq.;
decision of the supreme court of Spain of June 23, 1874; 1. R. C. L.,
par. 28.) What is the proof, direct or circumstantial, in the present
case?

Margarita Feliciano, the accused, was married to the complainant

Felix Atacador on January 15, 1911. She left her husband on February
15, 1916. During the months of May, June, and a part of July of the
same year, she lived in a rented house in Manila with Pedro
Velasquez. The owner, who lived in the upper part of the same
house, considered them to be man and wife. A photograph shows
their intimate relations. A witness testified to having seen the accused
and Velasquez in scant apparel and sleeping together. The woman
and her paramour had the opportunity to satisfy their adulterous
inclination. We think that a finding to the effect that Velasquez and
the accused had carnal relations is sufficiently in accord with the
probabilities of the case and the proof. (The United States
vs. Margarita Feliciano, G.R. No. L-12724, August 10, 1917)

In adultery cases, does the acquittal of one of the accused necessarily carry
the acquittal of the co-accused? No.

[I]n the late case of U. S. vs. Topiño and Guzman ([1916]) 35 Phil.,
901) citing the decision of the supreme court of Spain of January 17,
1889, it was expressly held that where a man and a woman are
charged in the same complaint with the crime of adultery the
acquittal of the woman does not necessarily carry with it the acquittal
of the man, although the offense is one which can only be committed
by two persons. Paraphrasing the language somewhat, it can now be
held that under a complaint for adultery the acquittal of the man
does not necessarily carry with it the acquittal of the woman because,
among other reasons, the man may not have known that the woman
was married. (The United States vs. Margarita Feliciano, G.R. No. L-
12724, August 10, 1917)

Is it necessary in the commencement of a criminal action for adultery that

the marital bonds between the complainant and the accused be unsevered
and existing at the time of the institution of the action by the former against
the latter? Yes.
Under Article 344 of the Revised Penal Code, the crime of adultery,
as well as four other crimes against chastity, cannot be prosecuted
except upon a sworn written complaint filed by the offended spouse. It
has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal,
requirement. While in point of strict law the jurisdiction of the court
over the offense is vested in it by the Judiciary Law, the requirement
for a sworn written complaint is just as jurisdictional a mandate since
it is that complaint which starts the prosecutory proceeding and
without which the court cannot exercise its jurisdiction to try the
case.

Now, the law specifically provides that in prosecutions for adultery

and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the offenses
of seduction, abduction, rape and acts of lasciviousness, no provision
is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words, only
the offended spouse, and no other, is authorized by law to initiate the
action therefor.

Corollary to such exclusive grant of power to the offended spouse to

institute the action, it necessarily follows that such initiator must
have the status, capacity or legal representation to do so at the time of
the filing of the criminal action. This is a familiar and express rule in
civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.

The absence of an equivalent explicit rule in the prosecution of

criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those
which cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party
who might prefer to suffer the outrage in silence rather than go
through the scandal of a public trial. Hence, as cogently argued by
petitioner, Article 344 of the Revised Penal Code thus presupposes
that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would be
absent where the supposed offended party had ceased to be the
spouse of the alleged offender at the time of the filing of the criminal
case.

In these cases, therefore, it is indispensable that the status and

capacity of the complainant to commence the action be definitely
established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would
be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where
such capacity or status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the time of, the institution
of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal
capacity to do so. (Imelda Manalaysay Pilapil vs. Ibay-Somera, G.R.
No. 80116, June 30, 1989)

Is the concept of pari delicto a valid defense in Adultery? No.

In the Guinucud case, the Court found that the complaining husband,
by entering into an agreement with his wife that each of them were to
live separately and could marry other persons and by filing
complaint only about a year after discovering his wife's infidelity,
had "consented to, and acquiesced in, the adulterous relations
existing between the accused, and he is, therefore, not authorized by
law to institute the criminal proceedings." In fine, the Guinucud case
refers not to the notion of pari delicto but to consent as a bar to the
institution of the criminal proceedings. In the present case, no such
acquiescence can be implied: the accused did not enter into any
agreement with Dr. Neri allowing each other to marry or cohabit
with other persons; and Dr. Neri promptly filed his complaint after
discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal
Code, but only in Article 1411 of the Civil Code. The Court notes that
Article 1411 of the Civil Code relates only to contracts with illegal
consideration. The case at bar does not involve any illegal contract
which either of the contracting parties is now seeking to enforce.
(Eduardo Arroyo, Jr. vs. Court of Appeals, G.R. No. 96602 November
19, 1991)

When must pardon be given for it to be a valid defense?

The rule on pardon is found in Article 344 of the Revised Penal Code
which provides:

ART. 344. ... — The crime of adultery and concubinage

shall not be prosecuted except upon a complaint filed by
the offended spouse.

The offended party cannot institute criminal

prosecution without including both parties, if they are both
alive, nor in any case, if he shall have consented or pardoned
the offenders.

xxx xxx xxx

While there is a conceptual difference between consent and pardon in

the sense that consent is granted prior to the adulterous act while
pardon is given after the illicit affair, nevertheless, for either consent
or pardon to benefit the accused, it must be given prior to the filing of a
criminal complaint. In the present case, the affidavit of desistance was
executed only on 23 November 1988 while the compromise
agreement was executed only on 16 February 1989, after the trial court
had already rendered its decision dated 17 December 1987 finding
petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is
both dated and signed after issuance of our Resolution in G.R. No.
96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal
Code provides that the crime of adultery cannot be prosecuted
without the offended spouse's complaint, once the complaint has
been filed, the control of the case passes to the public
prosecutor. Enforcement of our law on adultery is not exclusively,
nor even principally, a matter of vindication of the private honor of
the offended spouse; much less is it a matter merely of personal or
social hypocrisy. Such enforcement relates, more importantly, to
protection of the basic social institutions of marriage and the family
in the preservation of which the State has the strongest interest; the
public policy here involved is of the most fundamental kind. In
Article II, Section 12 of the Constitution there is set forth the
following basic state policy:

The State recognizes the sanctity of family life and shall

protect find strengthen the family as a basic autonomous
social institution ...

The same sentiment has been expressed in the Family Code o the
Philippines in Article 149:

The family, being the foundation of the ration, is a basic

social institution which public policy cherishes and
protects. Consequently, family relations are governed by
law and no custom, practice or agreement destructive of
the family shall be recognized or given effect.

(Eduardo Arroyo, Jr. vs. Court of Appeals, G.R. No. 96602 November
19, 1991)

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G.R. No. L-48183 November 10, 1941

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. RODOLFO A. SCHNECKENBURGER, ET AL., Defendants-
Appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and Acting Solicitor
Luciano for appellee.

MORAN, J.:

On March 16, 1926, the accused Rodolfo A. Schneckenburger

married the compliant Elena Ramirez Cartagena and after
seven years of martial life, they agreed, for reason of alleged
incompatibility of character, to live separately each other and
on May 25, 1935 they executed a document which in part
recites as follows:

Que ambos comparecientes convienen en vivir separados

el uno del otro por el resto de su vida y se comprometen,
y obligan reciprocamente a no molastarse ni intervenir ni
mezclarse bajo ningun concepto en la vida publica o
privada de los mismos, entre si, quendado cada uno de
 los otorgantes en completa libertad de accion en calquier
acto y todos concepto.

On June 15, 1935, the accused Schneckenburger, without

leaving the Philippines, secured a decree of divorce from the
civil court of Juarez, Bravos District, State of Chihuahua,
Mexico. On May 11, 1936, he contracted another marriage
with his co-accused, Julia Medel, in the justice of the peace
court of Malabon, Rizal, and since then they lived together as
husband and wife in the city of Manila. Because of the nullity
of the divorce decreed by the Mexico Court, complaint herein
instituted two actions against the accused, one for bigamy in
the Court of First Instance of Rizal and the other concubinage
in the court of First Instance of Manila. The first culminated in
the conviction of the accused for which he was sentenced to
penalty of two months and one day of arresto mayor. On the
trial for the offense of concubinage accused interposed the
plea of double jeopardy, and the case was dismissed; but,
upon appeal by the fiscal, this Court held the dismissal before
the trial to be premature this was under the former procedure
and without deciding the question of double jeopardy,
remanded the case to the trial court for trial on the merits.
Accused was convicted of concubinage through reckless
imprudence and sentenced to a penalty of two months and one
day ofarresto mayor. Hence this appeal.

As to appellant's plea of double jeopardy, it need only be

observed that the office of bigamy for which he was convicted
and that of concubinage for which he stood trial in the court
below are two distinct offenses in law and in fact as well as in
the mode of their prosecution. The celebration of the second
marriage, with the first still existing, characterizes the crime of
bigamy; on the other hand, in the present case, mere
cohabitation by the husband with a woman who is not his wife
characterizes the crime of concubinage. The first in an offense
against civil status which may be prosecuted at the instance of
the state; the second, an offense against chastity and may be
prosecuted only at the instance of the offended party. And no
rule is more settled in law than that, on the matter of double
jeopardy, the test is not whether the defendant has already
been tried for the same act, but whether he has been put in
jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422;
People v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused
should be acquitted of the crime of concubinage. The
document executed by and between the accused and the
complaint in which they agreed to be "en completa libertad de
accion en cualquier acto y en todos conceptos," while illegal for
the purpose for which it was executed, constitutes
nevertheless a valid consent to the act of concubinage within
the meaning of section 344 of the Revised Penal Code. There
can be no doubt that by such agreement, each party clearly
intended to forego to illicit acts of the other.

We said before (People vs. Guinucod, 58 Phil., 621) that the

consent which bars the offended party from instituting a
criminal prosecution in cases of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness is that
which has been given expressly or impliedly after the crime
has been committed. We are now convinced that this is a
narrow view in way warranted by the language, as well as the
manifest policy, of the law. The second paragraph of article
344 of the Revised Penal Code provides:

The offended party cannot institute criminal prosecution

without including both the guilty parties, if they are both
alive, nor, in any case, if he shall
have consented or pardoned the offenders. (Emphasis
ours.)

As the term "pardon" unquestionably refers to the offense

after its commission, "consent" must have been intended
agreeably with its ordinary usage, to refer to the offense prior
to its commission. No logical difference can indeed be
perceived between prior and subsequent consent, for in both
instances as the offended party has chosen to compromise
with his/her dishonor, he/she becomes unworthy to come to
court and invoke its aid in the vindication of the wrong. For
instance, a husband who believers his wife another man for
adultery, is as unworthy, if not more, as where, upon acquiring
knowledge of the adultery after its commission, he says or
does nothing. We, therefore, hold that the prior consent is as
effective as subsequent consent to bar the offended party from
prosecuting the offense.

In this arriving at this conclusion we do not with to be

misconstrued as legalizing an agreement to do an illicit act, in
violation of law. Our view must be taken only to mean that an
agreement of the tenor entered into between the parties
herein, operates, within the plain language and manifest policy
of the law, to bar the offended party from prosecuting the
offense. If there is anything morally condemnatory in a
situation of his character, the remedy lies not with us but with
the legislative department of the government. What the law is,
not what it should be, defines the limits of our authority.

Judgment is reversed and the accused is hereby acquitted,

without costs.

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