My sister found out that her husband is maintaining a mistress. Some of her friends confronted her about it before but she never actually believed them. Just recently, she found some papers supporting the information given to her by her friends. She has been very depressed that she even neglects their 5-year-old child; thus, at present, I am taking care of my pamangkin. Is it possible for me to file a case for concubinage against my brother-in-law since my sister is not in the best psychological position to do it herself? If ever, what penalties may be imposed for this crime?
[Note: Pamangkin is the Filipino word for nephew or niece. Barry, however, did not say if his pamangkin is a boy or a girl.]
A spouse who fails to remain loyal during the subsistence of his or her marriage violates his or her civil obligation as enunciated under Article 68 of the Family Code of the Philippines: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Apart from that, he or she may be held criminally responsible under pertinent provisions of our criminal laws.
In the situation you have presented before us, it may be said that your brother-in-law may have violated his civil obligation to his wife if he, in fact, became unfaithful to her during their marriage. Nevertheless, it cannot be said outright that your brother-in-law may be held criminally liable for the crime of concubinage for the reason that the law penalizing such crime requires not only marital infidelity. Rather, what the law particularly requires is for the husband to 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 (Article 334, Revised Penal Code [RPC]).
Furthermore, please bear in mind that it is not possible for you to file the criminal complaint for concubinage against your brother-in-law. Such action may only be instituted by your sister. This is in consonance with Article 344 of the RPC, which provides: “The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. x x x 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. x x x”
Should your sister pursue in filing the criminal case and be able to establish in court that her husband committed the said crime, the latter may suffer the penalty of prision correccional in its minimum and medium periods and his concubine shall suffer the penalty of destierro (Article 334, RPC).
We hope that we were able to answer your queries. Please be reminded that 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.
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