LECTURE IN ADULTERY AND CONCUBINAGE

Art. 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.

Adultery shall be punished by prision correccional in its medium and maximum

periods.

If the person guilty of adultery committed this offense while being abandoned
without justification by the offended spouse, the penalty next lower in degree than that
provide in the next preceding paragraph shall be imposed.

WHAT ARE THE ELEMENTS/REQUISITES OF ADULTERY?

1. That the woman is married

2. That she has sexual intercourse with a man not her husband
3. That as regards the man with whom she has sexual intercourse, he must know her to
be married

THE WOMAN MUST BE MARRIED

The legitimacy of the marriage relation between the offended husband and the
defendant wife is one of the circumstances which must necessarily attend the crime of
adultery. (See The Revised Penal Code Book 2 by Luis B. Reyes, 2021 ed., p. 1128)

THE OFFENDED PARTY MUST BE LEGALLY MARRIED TO THE OFFENDER AT

THE TIME OF THE CRIMINAL CASE

The person who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint. Thus, where the offended party (a foreigner) in an adultery case already
obtained a divorce in his country before the adultery proceedings are commenced, he
no longer has the right to institute proceedings against the offenders. (Pilapil vs. Ibay-
Somera, 174 SCRA 653)

WHAT IS THE MEANING OF THE PHRASE “EVEN IF THE MARRIAGE BE

SUBSEQUENTLY DECLARED VOID?”

In view of this phrase used in Art. 333, it is not necessary that there be a valid
marriage between the offended husband and the guilty woman.

There is adultery, even if the marriage of the guilty woman with the offended
husband is subsequently declared void. (Reyes, 2021 ed., p. 1129)

WHAT IS THE REASON FOR PUNISHING ADULTERY EVEN IF THE MARRIAGE IS

SUBSEQUENTLY DECLARED VOID?

At no time does the bond of matrimony contain a defect which by itself is

sufficient to dissolve the union. Until the marriage is declared to be null and void by
competent authority in a final judgment, the offense to the vows taken, and the attack on
the family exists---the adultery reunites the essential conditions required for its
punishment. (US vs. Mata, 18 Phil. 490)
CARNAL KNOWLEDGE MAY BE PROVED BY CIRCUMSTANTIAL EVIDENCE

Direct proof of carnal knowledge is not necessary to sustain a conviction for

adultery. In the very nature of things, it is seldom that adultery can be established by
direct evidence. The legal tenet. Therefore, has been and is still is that circumstantial
and corroborative evidence such as will lead the guarded discretion of a reasonable and
just man to the conclusion that the criminal act of adultery has been committed, will
suffice to bring about a conviction for that crime. (People vs. Dante, et al., C.A., 51 O.G.
801, citing US vs. Legaspi, 14 Phil. 38, 40-41)

The evidence which was considered sufficient: (1) photographs showing the
intimate relations of the two accused; and (2) testimony of a witness to the effect that
the two accused were in scant apparel and sleeping together. Such evidence is
sufficient to show that the two accused had the opportunity to satisfy their adulterous
inclination. (US vs. Feliciano, 36 Phil. 753)

EACH SEXUAL INTERCOURSE CONSTITUTES A CRIME OF ADULTERY

The crime of adultery is an instantaneous crime which is consummated and

completed at the moment of the carnal union. Each sexual intercourse constitutes a
crime of adultery.

Even if the husband should pardon his adulterous wife, such pardon would not
exempt the wife and her paramour from criminal liability for adulterous acts committed
after the pardon had been granted, because the pardon refers to previous and not to
subsequent adulterous acts. (People vs. Zapanta and Bondoc, 88 Phil. 688)

Adultery, therefore, is not a continuing offense.

The essence of adultery is the violation of the marital vow. The gist of the crime
of adultery is the danger of introducing spurious heirs into the family, where the rights of
the real heirs may be impaired and a man may be charged with the maintenance of a
family not his own. (US vs. Mata, 18 Phil. 490)

PARI DELICTO IS NOT A DEFENSE

Where the accused claims that her husband’s extra-marital affair precludes him
from filing a criminal complaint for adultery on the ground of pari delicto, the Court held
that: The concept of pari delicto is not found in the Revised Penal Code but only in Art.
1411 of the Civil Code. The Court notes that Art. 1411 of the Civil Code relates only to
contracts with illegal consideration. This case does not involve illegal contract which
either of the contracting parties is now seeking to enforce. (Arroyo, Jr. vs. CA, GR No.
96602, November 19, 1991)

THE MAN, TO BE GUILTY OF ADULTERY, MUST HAVE KNOWLEDGE OF THE

MARRIED STATUS OF THE WOMAN

The man may be single or married. With respect to the man, knowledge that the
woman with whom he had sexual intercourse is married, is an essential element that
must be established if he is to be convicted of adultery.

And although in the beginning, the man did not know of the woman’s married
status, but he continued his illicit relations with her after he gained knowledge of such
status, he will be guilty of adultery as regards the sexual intercourse done after having
such knowledge. (US vs. Topino, et al., 35 Phil. 901)
 A married man might not be guilty of adultery, on the ground that he did not know
that the woman was married, but if he appeared to be guilty of any of the acts defined in
Art. 334, he would be liable for concubinage. (Del Prado vs. De la Fuente, 28 Phil. 23)

But the married woman is guilty of adultery. If she knew that the man was
married, she would be liable for concubinage also.

EFFECT OF THE ACQUITTAL OF ONE OF THE DEFENDANTS

It does not operate as a cause for acquittal of the other.

Reasons of the Supreme Court:
(1) There may not be a joint criminal intent, although there is joint physical act.
(2) Thus, one of the parties may be insane and the other sane, in which case, only the
sane could be held liable criminally.
(3) Thus, also, the man may not know that the woman is married, in which case, the
man is innocent.
(4) Thus, also, the death of the woman during the pendency of the action cannot defeat
the trial and conviction of the man. (US vs. De la Torre and Gregorio, 25 Phil. 36)
(5) Even if the man had left the country and could not be apprehended, the woman can
be tried and convicted. (US vs. Topino and Guzman, 35 Phil. 901)

EFFECT OF DEATH OF THE PARAMOUR

It will not bar prosecution against the unfaithful wife, because the requirement
that both offenders should be included in the complaint is absolute only when the two
offenders are alive. (Reyes, 2021 ed., p. 1133)

EFFECT OF DEATH OF OFFENDED PARTY

The proceedings must continue. The theory that a man’s honor ceases to exist
from the moment that he dies is not acceptable. Art. 353 seeks to protect the honor and
reputation not only of the living but of dead persons as well. Moreover, even assuming
that there is a presumed pardon upon the offended party’s death, pardon granted after
criminal proceedings have been instituted cannot extinguish criminal liability. (People
vs. Diego, CA., 38 O.G. 2537)

But if he dies before a complaint could be filed, the case cannot go on, because
no one can sign and file the complaint.

EFFECT OF PARDON

Art. 344 requires that:

1) The pardon must come before the institution of the criminal prosecution; and
2) Both the offenders must be pardoned by the offended party.

In view of these requirements, a motion to dismiss filed on behalf of the

defendant wife alone based on an affidavit executed by the offended husband in which
he pardoned her for her infidelity cannot prosper. (People vs. Infante, 57 Phil. 138)
ACT OF INTERCOURSE SUBSEQUENT TO ADULTEROUS CONDUCT IS AN
IMPLIED PARDON

The act of having intercourse with the offending spouse subsequent to

adulterous conduct is, at best, an implied pardon of said adulterous conduct. But it does
not follow that, in order to operate as such, an express pardon must also be
accompanied by intercourse between the spouses thereafter. Where the pardon given
is express---not merely implied---the act of pardon by itself operates as such whether
sexual intercourse accompanies the same or not. (People vs. Muguerza, el al., 13 C.A.
Rep. 1079)

AGREEMENT TO SEPARATE

While the agreement is void in law, it is nevertheless, competent evidence to

explain the husband’s inaction after he knew of his wife’s living with her co-accused. He
may be considered as having consented to the infidelity of his wife, which bars him from
instituting criminal complaint. (People vs. Guinucud, et al., 58 Phil. 621)

UNDER THE LAW, THERE IS NO ACCOMPLICE IN ADULTERY

Under the law, there cannot be an accomplice in the crime of adultery, although
in fact there can be such an accomplice. (Decision of the Supreme Court of Spain of
June 3, 1874; Viada, 3 Codigo Penal 107)

Art. 334. Concubinage.---Any husband who shall keep a mistress in the conjugal
dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

WHAT ARE THE THREE WAYS OF COMMITTING CONCUBINAGE?

(1) By keeping a mistress in the conjugal dwelling

(2) By having sexual intercourse, under scandalous circumstances, with a woman who
is not his wife
(3) By cohabiting with her in any other place

WHAT ARE THE ELEMENTS/REQUISITES OF CONCUBINAGE?

(1) That the man must be married

(2) That he committed any of the following acts:
(a) Keeping a mistress in the conjugal dwelling
(b) Having sexual intercourse under scandalous circumstances with a woman
who is not his wife
(c) Cohabiting with her in any other place
(3) That as regards the woman, she must know him to be married

THE OFFENDERS ARE THE MARRIED MAN AND THE WOMAN WHO KNOWS HIM
TO BE MARRIED

The offender must be a married man. The woman becomes liable only when she
knew him to be married prior to the commission of the crime. (Reyes, 2021 ed., p. 1136)
WHAT IS THE MEANING OF THE FIRST WAY OF COMMITTING CONCUBINAGE
“BY KEEPING A MISTRESS IN THE CONJUGAL DWELLING?”

The wife left the conjugal home and lived with her parents because of troubles
between her husband and herself. The husband took into the house his co-accused and
they lived together conjugally. They were seen feeding and caressing each other.

The Supreme Court held that the husband was guilty of concubinage by keeping
a mistress in the conjugal dwelling. When the mistress lived in the dwelling of the
spouses for about two months, no positive proof of actual intercourse is necessary, it
appearing that the mistress is pregnant not by any other man and they were surprised
on the same bed. (People vs. Bacon, C.A., 44 O.G. 2760)

“Scandalous circumstances” are not necessary to make a husband guilty of

concubinage by keeping a mistress in the conjugal dwelling. (US vs. Macabagbag, et
al., 31 Phil. 257)

WHO IS A MISTRESS?

In view of the rulings in the cases of People vs. Bacon, C.A., 44 O.G. 2760 and
People vs. Hilao, et al., C.A., 52 O.G. 904, it is necessary that the woman is taken by
the accused into the conjugal dwelling as a concubine.

WHAT IS A CONJUGAL DWELLING?

By “conjugal dwelling” is meant the home of the husband and wife even if the
wife happens to be temporarily absent on any account. (Reyes, 2021 ed., p. 1137)

WHAT IS THE MEANING OF THE SECOND WAY OF COMMITTING CONCUBINAGE

“BY HAVING SEXUAL INTERCOURSE UNDER SCANDALOUS
CIRCUMSTANCES?”

It is only when the mistress is kept elsewhere (outside of the conjugal dwelling)
that “scandalous circumstances” become an element of the crime. (US vs.
Macabagbag, et al., 31 Phil. 257)

Scandal consists in any reprehensible word or deed that offends public

conscience, redounds to the detriment of the feelings of honest persons, and give
occasion to the neighbors’ spiritual damage or ruin. (People vs. Santos, et al., 45 O.G.
2116)

The scandal produced by the concubinage of a married man occurs not only
when (1) he and his mistress live in the same room of a house, but also when (2) they
appear together in public, and (3) perform acts in sight of the community which give rise
to criticism and general protest among the neighbors.

The qualifying expression “under scandalous circumstances” refer to the act of

sexual intercourse which may be proved by circumstantial evidence. (Reyes, 2021 ed.,
p. 1138)

THE PEOPLE IN THE VICINITY ARE THE BEST WITNESSES TO PROVE

SCANDALOUS CIRCUMSTANCES

If none of the acts of the defendants were proved by the testimony of the people
from the vicinity, there is no scandal (US vs. Casipong, et al., 20 Phil. 178)
 So, for the existence of the crime of concubinage by having sexual intercourse
under scandalous circumstances, the offender must be so imprudent and wanton as to
offende modesty and that innate sense of morality and decency of the people in the
neighborhood. (Reyes, 2021 ed., p. 1138)

WHEN SPIES ARE EMPLOYED, THERE IS NO EVIDENCE OF SCANDALOUS

CIRCUMSTANCES

When spies are employed for the purpose of watching the conduct of the
accused and it appearing that none of the people living in the vicinity has observed any
suspicious conduct on his part in relation with his co-accused, there is no evidence of
scandalous circumstances. (US vs. Campos Rueda, 35 Phil. 51)

WHAT IS THE MEANING OF THE THIRD WAY OF COMMITTING CONCUBINAGE

“BY COHABITING WITH A WOMAN IN ANY OTHER PLACE?”

Mere cohabitation is sufficient. Proof of scandalous circumstances is not

necessary. (People vs. Pitoc, et al., 43 Phil. 760)

Where a married man and a woman began their illicit relations in 1937 and went
to mage where they dwelt together as husband and wife in the house of one Alfonsa
Toledo, occupying one room in which they slept alone, it was held that his association
with his co-accused is sufficient to constitute a cohabitation within the meaning of the
law even disregarding proofs of actual sexual intercourse. (Ocampo vs. People, 72 Phil.
268)

WHAT IS THE MEANING OF “COHABIT?”

It means to dwell together, in the manner of husband and wife, for some period of
time, as distinguished from occasional, transient interviews for unlawful intercourse.
Hence, the offense is not a single act of adultery; it is cohabiting in a state of adultery
which may be a week, a month, a year or longer. (People vs. Pitoc, et al., 43 Phil. 760)

(1) Thus, there is no concubinage if a married man is surprised in the act of sexual
intercourse with a woman not his wife in a hotel.

(2) Thus, also, a person who keeps a mistress in an apartment furnished by him is not
guilty of concubinage if he does not live of sleep with her in said apartment.

(3) In the case of People vs. Santos, et al., C.A., 45 O.G. 2116, where in a room in the
Philippine General Hospital the offended wife surprised her husband and another
woman lying in the same bed, her husband wearing pants and the co-accused wearing
ordinary dress, it was held that there was no cohabitation, because the man had his
quarters in PGH while the woman had her home at 350 Taft Avenue.

(4) Charging the accused with concubinage, the prosecution proved only that the
accused is married and that he is the father of a child born of another woman, his co-
accused. Is he guilty of concubinage? NO. That the accused is really the father of the
child, alone and by itself, is not sufficient to prove the offense charged. (People vs.
Benlot, et al., 16 C.A. Rep. 539)

Note: None of the three acts of concubinage is thereby proved.