Nicolas & de Vega Article Who Can File a Case for Adultery

Only the offended husband can file a criminal case for adultery against his wife who had sexual intercourse with another man.

Article 333 of the Revised Penal Code penalizes a married woman for having sexual intercourse with another man who is not her husband. That other man or paramour is also held liable if he knew the woman to be married and still had sexual intercourse with her. In the words of the Supreme Court in the case of US vs. Topino (G.R. No.  11896, 20 December 1916) ”If a man lies with a married woman, knowing her to be married, he commits the crime of adultery. If a married woman lies with a man who is not her husband, she likewise commits the crime of adultery”.

Adultery is a private crime

It is a hornbook rule in criminal law that crimes are generally committed against the State.  The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power instinctively charged by the common will of the members of society to look after, guard and defend the interests of the community, the individual and social rights and the liberties of every citizen and the guaranty of the exercise of his rights (People of the Philippines vs. Quijada, G.R. No. 115008, 24 July 1996). However, there are certain offenses that are considered as private crimes. Such type of crimes can only be prosecuted except upon the instance of the offended party. Adultery is one of them. Pursuant to Art. 344 of the Revised Penal Code, only the offended husband can file the criminal case for adultery, NOBODY ELSE. This is jurisdictional and failure to follow this will result in the dismissal of the criminal case.

The husband must sue both his wife and her paramour

Why is this the case? This legal requirement was imposed “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 (Donio-Teves vs. Vamenta, G.R. No. L-38308, 26 December 1984). The law gives the husband the option to either seek relief from the court or bear the pain in silence. Furthermore, the husband must sue both his wife and her paramour.  He cannot choose to sue only one of them.

The husband cannot file a case for adultery if his marriage with his wife has been severed

Since the husband has the sole power to file a complaint for adultery, he must have the legal capacity to do so. Thus, if the husband is not legally married to his wife anymore (foreign divorce or declaration of nullity or annulment of marriage), he cannot anymore file a criminal case for adultery against his wife. As held by the Supreme Court in Pilapil vs. Ibay-Somera (G.R. No. 80116, 30 June 1989), “there being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce.

However, once a complaint is filed, then the court will take full cognizance of the case. In fact, after filing a complaint, any pardon given by the husband to his wife and her paramour will not cause the dismissal of the case. Once the choice to file a case has been made manifest, the law will be applied in full force beyond the control of, and in spite of the complainant, his death notwithstanding (Donio-Teves vs. Vamenta, G.R. No. L-38308, 26 December 1984). 

Nicolas & De Vega Law Offices (NDV Law) is a full-service firm in the Philippines.  If you have any questions on adultery, please call us +632 84706126 or e-mail us at [email protected] to schedule an appointment with any of our criminal lawyers. Visit our website https://ndvlaw.com

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