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 ofprision correccionalin 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. 24et 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. 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 theoffended 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 proceedingand 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, asparens 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 prosecutedde 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 theraison d'etreof 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 statusbeforeorsubsequentto 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 theGuinucudcase, 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, theGuinucudcase refers not to the notion ofpari delictobut 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 ofpari delictois 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.

Theoffended party cannot institute criminal prosecutionwithout including both parties, if they are both alive, nor in any case,if he shall haveconsented orpardoned 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 givenprior 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 guiltybeyond 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)