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. L12724, 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. Topio 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)