The case of adultery

ByPersida Acosta

September 10, 2020

Dear PAO,

I caught my wife cheating again on me. Since this is the third time, I am

planning to file an adultery case against her and her new lover, Bryan.

However, a week ago, I was able to talk to Bryan who repeatedly apologized

and insisted that my wife represented herself to him as single. Bryan also told

me that he was diagnosed with cancer and had to undergo chemotherapy in

the coming weeks. Because of these, I intend not to include him in the

adultery case. Is this possible?

Mark

Dear Mark,

The answer is no. Article 344 of the Revised Penal Code of the Philippines

(RPC) provides that in cases of adultery or concubinage, the offended party

cannot institute its criminal prosecution without including both the guilty

parties, to wit:

“Article 344. Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape and acts of lasciviousness. — The crimes 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 the guilty parties, if they are both alive, nor, in any case, if he shall have

consented or pardoned the offenders. xxx”

It is not possible to institute a criminal case of adultery against your wife

alone since the law requires that both of the guilty parties, your wife and

Bryan, must be included. Furthermore, the Supreme Court held in the case of

People vs Infante (GR 36270, Aug. 31, 1932, Ponente: Associate Justice

George Malcolm) that although granting pardon to the offending party could

bar the institution of the criminal case of adultery, it is required that both

offenders must be pardoned and not just the wife or the lover, viz:

ADVERTISEMENT
“xxx The second paragraph of article 344 of the Revised Penal Code,

reading: “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,” means that the pardon

afforded the offenders must come before the institution of the criminal

prosecution, and means further that both the offenders must be pardoned by

the offended party if the said pardon is to be effective. xxx But with the

incorporation of the second paragraph of article 344, the pardon given by the

offended party again constitutes a bar to the prosecution for adultery. Once

more, however, it must be emphasized that this pardon must come before the

institution of the criminal prosecution and must be for both offenders to be

effective — circumstances which do not concur in this case. (Emphasis

supplied).”

If Bryan was really not aware that your wife was married when their
relationship started, he can use this as a defense which, if proven before the

court, may lead to his acquittal. Under Article 333 of the RPC, a man who

had no knowledge that the woman is married, is not liable for adultery, viz:

“Article 333. Who are guilty of adultery. — Adultery is committed by any

married woman who shall have sexual intercourse with a man not her

husband and by the man who has carnal knowledge of her knowing her to be
married, even if the marriage be subsequently declared void. (Emphasis and

underscoring supplied).”

We hope that we were able to answer your queries. This advice is based

solely on the facts you have narrated and our appreciation of the same. Our

opinion may vary when other facts are changed or elaborated.