Dear PAO,
Since August 2023, my granddaughter’s husband has been cold to her. She did not entertain then the possibility of him having a mistress because, I guess, she was in denial. However, a co-worker of her husband confirmed to her that her husband has a relationship with a woman who also works in their company and that they have been living together in a condominium unit. Even though my granddaughter is really devastated, she does not want to pursue a case for concubinage against her husband. At most, she is considering filing such a case against the mistress. Is this possible? Is it also possible that I will be the one to file the case? I have a friend who filed a case on behalf of her granddaughter as well, although that case was about acts of lasciviousness. So, I was wondering if I could do the same for and on behalf of my granddaughter.
Clare
Dear Clare,
The Revised Penal Code of the Philippines clearly defines and provides the penalty for the crime of concubinage. The law also expressly provides that the prosecution of such a crime may only be made at the instance of the offended spouse and must be pursued against both offenders if they are both alive.
While the crime of Acts of Lasciviousness may be instituted not only at the instance of the offended party but also by the latter’s grandparents, among others, the crime of concubinage may only be prosecuted by the offended spouse.
To be certain, Articles 334 and 344 of the Code state:
“Article 334. Concubinage. – 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 place, shall be punished by prision correccional in its minimum and medium periods.
“The concubine shall suffer the penalty of destierro. x x x
“Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.
“The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
“The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. x x x”
As a corollary, your granddaughter must thoroughly think her situation through. And, if she indeed wants to obtain justice for the criminal infidelity that is being committed by her husband, she must resolutely pursue the criminal complaint against both her husband and his mistress.
Your granddaughter cannot opt to institute such a complaint only against her husband’s mistress if both offenders are still alive. While we also understand your desire to assist your granddaughter, you may not institute the complaint on her behalf as you are not the proper party to pursue such legal action.
We hope that we were able to answer your queries. This advice is 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 on.
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].
