PUNISHING AN UNFAITHFUL HUSBAND: Jurisprudential Development of Marital Infidelity

By: Daniella Khylyn D.Glean

      The sound of wedding bells and the tune of “Here Comes the Bride” are wonderful sounds most people aspire to hear. However, once the ceremonies are over and the fairy tale ends, there are some grim realities that beset unfortunate married couples.[1] One of them is the infidelity committed by one of the spouses.

      Unfortunately, in this age when broken homes have become all too common, marriage requires hard work – a part of which is to accept the fact that something may come up and destroy the union and the commitment. Wives, in particular, should be aware of their legal rights. 

      What can a wife do within the bounds of the law when her husband cheats? Unfaithfulness of a husband is punishable under Article 334 of the Revised Penal Code. Likewise, repeated marital infidelity is also punishable under Republic Act No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Law.

      Philippine law criminalizes concubinage. Under the Revised Penal Code, concubinage may be committed by a husband with a woman who is not his wife provided certain conditions are met. On the other hand, the National Commission for Women defines marital infidelity as “a violation or breach of good faith and confidence by one or both spouses to the matrimonial vows.”[2]  While there is no such crime as marital or sexual infidelity, it is regarded as one of the grounds for a Petition for Legal Separation.[3] Under the Philippine laws, there is no precise definition of sexual infidelity but our jurisdiction recognizes that this include concubinage, which is denominated as a crime against chastity.[4]

      Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under exceptional 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.[5] The elements of the crime of concubinage are:

      1. That the man must be married.
      2. That he committed any of the following acts:
        • Keeping a mistress in the conjugal dwelling;
        • Having sexual intercourse under scandalous circumstances with a woman who is not his wife;
        • Cohabiting with her in any other place.
      3. That as regards the woman, she must know him to be married.[6]


      The offenders are the married man and the woman who knows him to be married prior to the commission of the crime. The former is liable for concubinage only when he does any of the three acts mentioned. If his sexual relations with a woman not his wife is not any one of them, he is not criminally liable.[7]

      Therefore, in order to be convicted of the crime, it is necessary for the offended spouse to establish proof beyond reasonable doubt that the husband is either keeping a mistress in the conjugal dwelling; or having sexual intercourse, under scandalous circumstances, with another woman; or cohabiting with another woman in any other place.[8] In addition, the crime of concubinage is considered a private crime which may only be prosecuted by the offended spouse.[9] Thus, the complaint must be lodged by the offended wife and no one else.

     From the discussion above, it can be inferred that the crime of concubinage is difficult to prove in court. Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Law (“VAWC”), was signed into law in order to address that difficulty. Due to the inherent unequal power relationship between men and women, the will of the offended wife to lodge a complaint might be affected by the dominant husband. Hence, the VAWC law considers repeated marital infidelity as a form of psychological violence and treats the same as a public crime. Being a public crime, the complaint may be filed by any citizen having personal knowledge of the circumstances.

      Republic Act No. RA 9262 , otherwise known as the Anti-Violence Against Women and Their Children Law (“VAWC”), defines violence against women and children as “any act or a series of acts against a woman who is his wife, former wife or against a woman with whom the person has or had sexual or dating relationship, or against her child, whether legitimate or illegitimate, within or without family abode, which result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion or arbitrary deprivation of liberty”.[10] As can be gleaned from this definition, the concept of “violence” against women includes not just physical violence, but also sexual violence, psychological violence and economic abuse.

      A novel concept in Philippine law is psychological violence. Section 3(c) of R.A. No. 9262 defines psychological violence asacts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.[11]

      On the other hand, Section 5(i) of R.A. No. 9262 penalizes psychological violence that are caused on victims who are women and children through any of the following acts:  “causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman’s child/children.”[12]

Hence, under Section 5(i), in relation to Sections 3(a) and 3(c) of RA No. 9262, the elements of the crime are derived as follows:

“(1) The offended party is a woman and/or her child or children;

(2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman’s child or children, they may be legitimate or illegitimate, or living within or without the family abode;

(3) The offender causes on the woman and/or child mental or emotional anguish; and

(4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar such acts or omissions.”[13]

      Therefore, psychological violence is an indispensable element to be made liable under Section 5(i) of R.A. No. 9262.[14] Equally essential is the element of emotional anguish and mental suffering. Psychological violence is the means employed by the perpetrator, while emotional anguish or mental suffering are the effects caused to or the damage sustained by the offended party.[15]

      In a landmark case dated September 8, 2020[16] the Supreme Court First Division ruled that the prosecution established beyond reasonable doubt that the husband committed the crime of psychological violence, by leaving his wife to live with his mistress despite being fully aware that his wife suffered emotionally and psychologically because of his decision.[17]

      The Supreme Court further explained that the marital infidelity committed by the husband, which is a form of psychological violence, is the proximate cause of the wife’s emotional anguish and mental suffering, to the point that even her health condition was adversely affected.[18] The law does not require that the victim became psychologically ill due to the psychological violence inflicted by the abuser. Psychological violence as an element of the crime, and the mental and emotional anguish the victim may suffer, may be proven through testimonies.[19]

      While the case is not the first to declare marital infidelity as a form of psychological violence, it is the first time the Court has said that the act of leaving a wife to live with the mistress, causing emotional and mental anguish, is considered a form of psychological violence. In this regard, Araza[20] made it a point that illicit relationships which causes mental or emotional anguish on the wife are addressed and penalized under R.A. No. 9262. However, it bears noting that R.A. No. 9262 does not criminalize acts of marital infidelity per se, but the psychological violence causing mental or emotional suffering on the wife.[21] It is the emotional anguish caused by illicit affairs by the husband, and not exactly the act of infidelity, that was subject of guilt. 

      Contrary to popular belief, being legally married is not just a piece of paper. When cheating occurs, it can confer wives the legal right to seek redress that will protect them as needed.

      However, while Philippine law criminalizes concubinage as a “crime against chastity” under the Revised Penal Code[22] and treats the same as sexual infidelity in the Family Code, the challenge persists that when the evidence merely proves that the husband is having an extra-marital affair and nothing more, he cannot be charged with concubinage. In which case, the offended spouse may likewise consider filing a complaint for violation of the provisions of R.A. 9262.[23] Philandering husbands can now be charged criminally even for just one incident of marital infidelity under the “psychological violence” provision of R.A. No. 9262.

      The Court, speaking through Chief Justice Peralta, affirmed that marital infidelity is a form of psychological violence. In effect, the Court liberally construed R.A. No. 9262 to afford women ample protection by filling the gaps of the law.

      This interpretation is in keeping with the obligation of the Philippines to uphold the rights of women according to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child, Universal Declaration of Human Rights (UDHR).

      The penalty for “psychological violence” is a minimum of six years up to twelve years of imprisonment. The maximum penalty is imposed if the violence is committed by the intimate partner against the woman when she is pregnant or in the presence of the common children.[24]

      They say the law is unfair to women, but fortunately, it can be fair for the innocent spouse. Through the rights conferred by the VAWC law, wives will no longer be silent victims. With the help of the law, the wife can fight for their rights.

[1] Nicolas & De Vega Law Offices,  How To Sue Your Wife For Adultery In The Philippines, https://ndvlaw.com/how-to-sue-your-wife-for-adultery-in-the-philippines/ (last accessed Nov. 8, 2020).

[2] Domini M. Torrevillas, Amending the marital infidelity law, https://www.pressreader.com/philippines/the-philippine-star/20150630/281702613368034 (last accessed Jan. 23, 2021)

[3] FAMILY CODE, art. 55 (8).

[4] REV. PEN. CODE, Book II, Title Eleven.

[5] REV. PEN. CODE, art. 344.

[6] REV. PEN. CODE, Book Two, page 848.

[7] People v. Santos, et al., C.A., 45 O.G. 2116.

[8] Id.

[9] REV. PEN. CODE, art. 344.

[10] R.A. No. 9262, Section 3(a).

[11] R.A. No. 9262, Section 3(c).

[12] R.A. No. 9262, Section 5(i).

[13] Dinamling v. People, 761 Phil. 356, 373 (2015).

[14] Esteban Donato Reyes v. People, G.R. No. 232678, July 3, 2019.

[15] Id.

[16] Jaime Araza y Jarupay v. People of the Philippines, G.R. No. 247429, Sept. 8, 2020.

[17] Id.

[18] Id.

[19] Id.

[20] Id., at 4.

[21] AAA v. BBB, G.R. No. 212448, January 11, 2018.

[22] Id., at 1.

[23] Id., at 2.

[24] Id., at 3.

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