Dear PAO,

My friend Arjon accused his wife and Tanos of adultery. The case is already pending before the court when Arjon eventually reconciled with his wife. Arjon desires that the case be dismissed but he was told that it may not happen without the concurrence of the prosecutor. Arjon was devastated because of this. He claimed that he is the offended party and the primary purpose of filing the case of adultery is for the vindication of his honor. He added that he is no longer interested to achieve such purpose, thus, it is just proper that the case be dismissed outright. Is he correct?

Akuyaroy

Dear Akuyaroy,

Adultery is a crime under Article 333 of the Revised Penal Code of the Philippines, as amended, which provides that: “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.”

Correlative thereto, Article 344 of the same law also states that:

“The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.xxx”

It is true that adultery shall not be commenced without the participation of the offended husband. However, when the case has already reached the court, the control over the case now passes to the prosecutor who represents the People of the Philippines as the public complainant. To enlighten you further, please take note of the decision in the case entitled Arroyo, Jr. vs. Court of Appeals and People of the Philippines, G.R. No. 96602, November 19, 1991, where the Supreme Court, speaking through Honorable Associate Justice Florentino P. Feliciano, stated that:

“It should also be noted that while Article 344 of the Revised 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 (sic) strengthen the family as a basic autonomous social institution…

“The same sentiment has been expressed in the Family Code of the Philippines in Article 149:

“The family, being the foundation of the nation, 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.

“In U.S. v. Topiño, the Court held that:

“… The husband being the head of the family and the only person who could institute the prosecution and control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced by the husband, and the enforcement of the penalties imposed is also 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. …”

Applying the above-quoted decision to your situation, the prosecution of a criminal case, such as adultery, is under the control of the prosecutor the moment the information is filed in court. The object of penalizing adultery is for the protection of the purity of family being the foundation of the nation and honor of the husband. It is not exclusively or principally for the vindication of the private honor of the offended husband, like Arjon. Thus, his statement is not correct.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]