Crimes against Chastity

ADULTERY AND CONCUBINAGE

Adultery and concubinage

The Revised Penal Code defines adultery as the carnal relation

between a married woman and a man who is not her husband, the latter
knowing her to be married, even if the marriage be subsequently
declared void1. Moreover, each sexual intercourse constitutes the crime
of adultery.

Concubinage, on the other hand, is committed by 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 place2.

Differences between adultery and concubinage

1. Adultery is committed by a wife while concubinage is committed by

a husband.

2. Evidence required

The nature of the crime of adultery is difficult to be established by

direct evidence. Nevertheless, the legal tenet 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…” 3.
In one 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
1
Article 333, Revised Penal Code
2
Article 334, Revised Penal Code
3
p.939, Reyes
 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”4.

The prosecution, in order to prove concubinage by the husband

must prove that the husband has kept a mistress in the conjugal
dwelling, had sexual intercourse under scandalous circumstances, or is
cohabiting with the mistress in any other place. This list is exclusive.
Thus, in order for the wife to charge his husband for concubinage, she
must prove any or all of these three circumstances. Illustrative of this is
the case of PP vs Pitoc & Del Basco.

“…before his marriage to Petronila Roque, the defendant

and his coaccused were living together for a number of
years in illicit relations. The defendants, Pedro Pitoc,
legally married Petronila Roque in the city of Manila on
February 21, 1921, and together they went to Calumpit,
Bulacan, to live. In a short time he left his wife there and
came to Manila, promising to return on March 15,
twenty-three days after their marriage. He never did
return. March 17, his wife came to Manila where she
found the defendant living in the same house and under
the same roof with his former paramour, staying around
her store and keeping company with her, under
circumstances which strongly tend to show that they
had resumed their former relations. It is, indeed,
significant that the defendant Pitoc would leave his wife
whom he married on February 21, and return to Manila
and go direct to, and obtain a room in, the same house
where his former paramour was living, and violate his
promise to return to his newly wedded wife on March
155”

3. Penalty

Adultery is more severely punished than concubinage. Adultery is

punished by prision correccional in its medium and maximum periods.
This means that the longest time the wife could be imprisoned is six (6)
years. Given that there is no accomplice in adultery, the penalty for the
man would be the same as that of the guilty wife.

Concubinage is punished by prision correccional in its minimum

4
The United States vs. Margarita Feliciano, G.R. No. 12724, August 10, 1917
5
PP vs Pitoc & Del Basco, G.R. No. 18513, September 18, 1922
and medium periods. The longest time that the husband will be
imprisoned is four (4) years and two (2) months. The penalty of the
mistress is only destierro. This means banishment or only a prohibition
from residing within the radius of 25 kilometers from the actual
residence of the accused for a specified length of time. It is not
imprisonment6.

Who can file the action for adultery or concubinage?

The person who can initiate the filing of the the complaint for
adultery or concubinage case is only the offended spouse. Also, it is a
requirement that the offended spouse must be legally married to the
offender at the time of the filing of the criminal case.

Who must be prosecuted?

The offended party cannot institute criminal criminal prosecution

without including both the guilty parties, if they are both alive7.

In adultery, the complaint must be instituted against both the wife

and her paramour. The husband is expressly prohibited from filing the
complaint against one of the parties without including therein the
other8.

Effect of consent or pardon by the offended spouse

Pardon of the offenders by the offended party is a bar to

prosecution for adultery or concubinage9. While there is a conceptual
difference between consent and pardon in the sense that consent is
granted prior to the commission of the 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.
Pardon can also be express or implied. As cited in Ligtas vs. Hon. Court
of Appeals, “… when the offended party in writing or in an affidavit
asserts that he or she is pardoning his or her erring spouse and
paramour for their adulterous act this is a case of express pardon.
There is implied pardon when the offended party continued to live with
his spouse even after the commission of the offense. However such
consent or pardon cannot be implied when the offended party allows
his wife to continue living in the conjugal home after her arrest only in

6
Uy Chin Hua vs. Dinglasan, G.R. No.  L-2907, June 30, 1950
7
Sec. 5, Rule 110, Rules of Court; Art. 344, RPC
8
U.S. vs Asuncion, 22 Phil. 358 as cited in p. 986 of Reyes
9
Art. 344, par. 2
order to take care of their children10.

Reason for punishing adultery and concubinage

Adultery and concubinage is the violation of the marital vow.

Adultery however, unlike concubinage is punished because of the
danger of introducing 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 own11.

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. Also, Article 149 of the in the Family Code of the
Philippines: 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. Both these provisions emphasize that the State gives
utmost importance to the preservation of marriages and families which
is the reason why our criminal laws on adultery and concubinage among
others should be strictly enforced.

10
G.R. No. L-47498 May 7, 1987
11
U.S. vs. Mata, 19 Phil. 490, as cited in p. 940 of Reyes