The Husband’s Infidelity Does Not Prevent Him from Suing his Wife for Adultery
The prosecution of criminal offenses related to marital infidelity, such as adultery and concubinage (Article 333 and Article 334 of the Revised Penal Code,), often raises questions regarding the standing of the offended spouse, particularly if that spouse has also engaged in extra-marital relations. The case of Arroyo vs. Court of Appeals , (G.R. No. 96602, November 19, 1991 (“Arroyo Case”) answered this question.
In the said case, the accused-wife contended that the extra-marital affair of the complaining husband should preclude him from filing the criminal complaint on the ground of pari delicto. However, judicial precedent firmly establishes that the doctrine of in pari delicto is not a valid defense to criminal charges of adultery or concubinage, and a spouse’s own infidelity does not automatically bar the institution of the criminal case.
The Doctrine of Pari Delicto is Limited to Civil Contracts
As held in the Arroyo Case, the concept of pari delicto (meaning “in equal fault”) is not a principle found within the Revised Penal Code. Instead, the doctrine is codified in Article 1411 of the Civil Code of the Philippines. The Supreme Court has noted that Article 1411 of the Civil Code relates solely to contracts that possess illegal consideration (Gonzales v. Trinidad, 67 Phil. 682, 1939). Thus, since a prosecution for adultery does not involve any illegal contract that a contracting party seeks to enforce, the doctrine of pari delicto is fundamentally inapplicable to criminal proceedings for marital infidelity.
The True Bars to Prosecution: Consent and Pardon
The statutory requirements and bars concerning the prosecution of adultery and concubinage are delineated in Article 344 of the Revised Penal Code. Article 344 stipulates that these crimes cannot be prosecuted except upon a complaint filed by the offended spouse. Furthermore, the offended party is barred from instituting criminal prosecution in two specific instances: if he shall have consented or pardoned the offenders.
Consent and pardon are conceptually distinct; consent is granted prior to the adulterous act, while pardon is given after the illicit affair (People v. Schneckenburger, 73 Phil. 413, 1941). Critically, for either consent or pardon to benefit the accused and bar the criminal case, it must be given prior to the filing of a criminal complaint (People v. Infante, 57 Phil. 138, 1932; Ligtas v. Court of Appeals, 149 SCRA 514, 1987).
Distinguishing Infidelity from Consent
In the Arroyo Case, while petitioners have attempted to utilize the notion of pari delicto as a valid defense against charges of adultery and concubinage, relying partially on the precedent set in People v. Guinucud (58 Phil. 621), the Supreme Court has clarified the true import of that ruling. The case of People v.Guinucud and Tagayun refers specifically to consent as a bar to the institution of criminal proceedings, not pari delicto. In Guinucud, the husband was barred because he had entered into an agreement with his wife allowing them to live separately and marry other persons, thereby establishing that he had “consented to, and acquiesced in, the adulterous relations”.
Therefore, even if a spouse has himself committed infidelity, he is not automatically barred from filing a case for adultery or concubinage. The decisive factor under Article 344 of the Revised Penal Code is whether the offended spouse gave consent to the specific illicit relationship subject of the complaint, or whether he pardoned the offenders before filing the charge. If no such acquiescence or prior pardon can be implied, as was the situation in the Arroyo case where the Complainant husband promptly filed his complaint after discovering the illicit affair, the complaint may proceed .
The Public Interest in Protecting the Family
The refusal to apply pari delicto in these criminal cases underscores the State’s vital interest in the preservation of marriage and the family. While the filing of the complaint vindicates the private honor of the offended spouse, the enforcement of laws against adultery relates, more importantly, to the protection of basic social institutions.
This public policy is deeply rooted, recognized by the Constitution, which sets forth that the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution (Article II, Section 12 of the Constitution). Similarly, the Family Code of the Philippines recognizes the family as the foundation of the nation, a basic social institution that public policy cherishes and protects (Article 149, Family Code of the Philippines). Once a criminal prosecution for adultery is commenced by the offended spouse, the enforcement of the penalty becomes a matter of public policy in which the Government is vitally interested to the extent of preserving the public peace and providing for the general welfare of the community (U.S. v. Topiño, 35 Phil. 901, 1916).
In essence, the protection afforded by the law against infidelity is a societal concern that transcends the personal moral fault or conduct of the complaining spouse, making the application of the contract-based doctrine of pari delicto inappropriate and contrary to established public policy.
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