Dear PAO,

My wife is having an affair with the brother of her officemate. I received several pictures and video clips of my wife with her other man. They have been going out for three months now. Can I file an adultery case against the brother of my wife's officemate without including my wife in the complaint because I do not want to hurt my two daughters who love their mother so dearly?

Bobby

Dear Bobby,

To answer your question, we shall refer to Article 333 of the Revised Penal Code, which provides:

"Article 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." (Emphasis supplied)

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Further, Section 5 of Rule 110 of the Revised Rules on Criminal Procedure, as amended by AM 02-2-07-SC, April 10, 2002, states that:

"Section 5. Who must prosecute criminal action. – All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn.

"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 the guilty parties, if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders xxx." (Emphasis supplied)

Applying the afore-mentioned laws in your question, a married woman who had sexual intercourse with a man other than her husband is guilty of adultery. The man will likewise be guilty of adultery, if he commits such carnal act knowing that the woman is married. This holds true even if the marriage of the woman be subsequently declared void. However, the rules clearly provide that the filing of the criminal complaint for adultery can only be made by the husband or the offended spouse, and shall include both of the guilty parties, if both are alive. Hence, while you have the right to file a complaint for adultery for the infidelity of your wife, you cannot proceed against the other man only, leaving your wife out of the case as this is not allowed by the rules. It is only possible if your wife is already dead. Further, should you decide to file a case against your wife and her other man, you are required to show that the other man knows of your marriage and yet he still proceeded to have sexual intercourse with your wife.

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 [email protected]