I just want to know if I can file an adultery case against the wife of my brother who is having an affair with another man. My brother is an overseas Filipino worker and knows nothing about his wife’s misadventures. I want to file the case because I don’t want to personally inform my brother about this. I don’t have the guts to break the bad news to my brother.
A married woman who shall have sexual intercourse with a man other than her husband is guilty of adultery. The same is true with her partner if the latter knew that the woman is married. This is according to the Revised Penal Code of the Philippines, which provides:
“Art. 333. Who are guilty of adultery. — 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.
Adultery shall be punished by prision correccional in its medium and maximum periods.
If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”
The institution of the criminal complaint for adultery can only be done by the husband, as the law explicitly provides that adultery can only be prosecuted by the offended spouse. This is clearly provided by Article 344 of the same law, to wit:
“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.
Thus, as clearly explained above, you cannot file a criminal complaint for adultery against your sister-in-law and her alleged paramour. It is your brother and no one else, who is vested by law the right to file the case.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org