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I.

INTRODUCTION
Article 334 of the Revised Penal Code provides for the meaning and penalty of Concubinage.
To wit:
Art. 334. Concubinage. ! Any husband who shall "eep a mistress in the con#ugal dwelling$ or$
shall have se%ual 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.& 'The Revised Penal Code
Criminal (aw$ Reyes$ )**+,
-nder Article 334$ concubinage is committed in three ways$ namely: by "eeping a mistress in
the con#ugal dwelling. or by having se%ual intercourse$ under scandalous circumstances$ with a woman
who is not his wife. or by cohabiting with her in any other place. Proving at least one of this
circumstances$ suffice the crime of concubinage.
/n addition$ the offender must be a married man. The woman becomes liable only when she
"new him to be married prior to the commission of the crime. Thus$ A married man is liable for
concubinage only when he does any of the three acts specified in Article 334. /f his se%ual relations
with a woman not his wife is not any one of them$ he is not criminally liable 'People vs. 0antos$ et al.$
C.A.$ 41 2.3. )445,
/n People vs. 6acon$ the Court of Appeals ruled that the husband was guilty of concubinage by
"eeping a mistress in the con#ugal dwelling. 7hen the mistress lived in the dwelling of the spouses for
about two months$ no positive proof of actual intercourse is necessary$ it appearing that the mistress is
pregnant not by any other man and that they were surprised on the same bed. 'People vs. 6acon$ C.A.$
44 2.3. )85*,
7hat is destierro9
Destierro means banishment or only a prohibition from residing within the radius of )1
"ilometers from the actual residence of the accused for a specified length of time. /t is not
imprisonment 'AttyAt7or".com$ )*43,
II. BODY
A. Criminal Aspect
As the crime providing punishment for e%tramarital affairs committed by the husband$ Article
334 lends not obedience and prevention but rather tolerance and loopholes& in the guise of the three
circumstances in which Concubinage can be committed.
:irst of the circumstances is "eeping the mistress in the con#ugal dwelling. Con#ugal dwelling is
'People v. Cordova,. A man with common sense would not ordinarily "eep or much less let his mistress
in the con#ugal dwelling in order to "eep his affairs hidden from his wife and family.
The second re;uisite is when the husband has se%ual intercourse under scandalous circumstances.
6y nature of his e%tramarital affair a man would ma"e efforts to "eep his affair discreet. /ndeed$ the
phrase <scandalous circumstances= is discriminatory and almost difficult or impossible to prove. The
phrase is also a vague and ambiguous phrase which under the statutory construction should be
construed in favour of the accused. /t also implies that a man having e%tramarital affairs is not wrong
nor is it a crime unless it either reaches a status of being under a <scandalous circumstance= whereas a
woman does not deserve any circumstance for her e%tramarital affair to be adultery. <0candalous
circumstance= also rests upon the people or neighbors who will #udge whether their sensibilities where
their sensibilities are offended with the married man and his mistress= se%ual relations to render it
scandalous. Concubinage is under Title 44 of 6oo" ) of Revised Penal Code which classifies it under
Crimes of Chastity therefore is it not enough that the se%ual intercourse is repugnant in the eyes of the
man=s wife$ a defilement of the man=s sacred vow of marriage and a desecration of the his and his
family=s reputation in addition to the besmirching of the character of the lady he made his mistress.
This is the only Article under the Crimes Against Chastity where an element re;uires other people aside
from the offended person to prove that indeed the crime is committed. /f that=s the case then there
really is indeed a need to amend the Revised Penal Code and transfer the crime Concubinage to Crimes
Against Person for it is apparently not a crime against the chastity of marriage but a crime against the
sensibilities of other people who may be named as third party.
The third act by which a husband can commit Concubinage is by cohabiting with a woman in
another place. Cohabitation means to dwell together$ in a manner as a husband and wife 'People v.
Pitoc, for some period of time which is different from that of occasional$ transient interviews for
unlawful intercourse.& 'Reyes$ p.>4), This opens an avenue for a man to have se%ual relations with a
woman not his wife from time to time without being charged with Concubinage provided he does not
stay with her for long period of time. /nstead of absolutely preventing the commission of e%tramarital
affairs by the husband$ the article ensured that a marries man can freely have se%ual relations
intermittently with a mistress woman without a conse;uence.
The needless inclusion of these three acts ma"es Concubinage an ineffective and essentially
impotent article.
The substantive criminal law is the law which for the purpose of preventing harm to society$ 'a,
declares what conduct is criminal$ and 'b, prescribes the punishment to be imposed for such conduct.
'6lac"=s (aw ?ictionary. :ifth @d.$ p. 338,
B. Civil Aspect
/t is necessary to revise the crime of concubinage because it destroys the familial harmony.
There is still a need to revise the crime of Concubinage even when se%ual infidelity in Article
13'+, as a ground for legal separation was revised. Previously$ Article 13'+, rests upon Article 333 and
Article 334 which means that for se%ual infidelity to e%ist the crime of adultery or concubinage must
first be proved. 6y virtue of the amendment se%ual infidelity can now be committed as the mere se%ual
act.
/f the essence of the adultery is the violation of the marital vow$ what then is the essence of
concubinage$ the protection of men=s ego9
The gist of the crime of adultery as maintained in -.0. v. Aata$ is the danger of introducing
spurious heirs into the family. 7hat about the danger of producing spurious heirs into another family9
-nfortunately$ it is not the gist of the crime of concubinage.
The logic behind the reason that adultery introduces spurious heirs wherein the rights of real heirs
may be impaired and by implication that concubinage does not$ is preposterous.
Bumerous cases manifest the truth that inheritance are being fought from legitimate heirs by
illegitimate children fathered by the husband through e%tramarital affairs.
The low cases of children born through adultery who compete for the ac;uisition of rights and
properties may be due to the tone of absolute prevention evinced by the crime of adultery or due to the
lesser inclination of :ilipino women to cheat and be disloyal.
2ne of the rights of an illegitimate children is that he is entitled to the legitime and other
successional rights granted to them by the Civil Code. Children$ whether legitimate or illegitimate$ are
entitled to be supported by their parents. Cowever$ the support go illegitimate children is chargeable to
the separate property of the person obliged to give support. /n case the person obliged to give support
has no separate property$ the absolute community or the con#ugal partnership$ if financially capable$
shall advance the support which shall be deducted from the share of the spouse obliged upon the
li;uidation of the absolute community or of the con#ugal partnership.
The obligation of the parents to give support and the corresponding right of the children$ whether
legitimate or illegitimate to receive support do not proceed from$ nor based upon$ the e%ercise of
parental authority. The right of the children to receive support e%tends beyond the age of ma#ority. An
illegitimate father is also obliged to give support even when parental authority is e%ercised by the
mother.
The husband and wife are obliged to render mutual help and support. /n short$ the marriage
relation imposes upon the spouses the obligation to support each other. The ordinary meaning of
<spouse= is one=s legal husband or wife. The one entitled to support are the <legitimate spouse=.
The right to live together also includes the right to demand se%ual intimacy from the other
spouse. 2ne of the essential marital obligations under the :amily Code is to procreate children based
on the universal principle that procreation of children through se%ual cooperation is the basic end of
marriage.& 'Chi Aing Tsoi v. CA,
Cohabitation is public assumption by a man and a woman of the marital relation and dwelling
together as man and wife$ thereby holding themselves out to the public as such.
7e defined empathy as a shared feeling between husband and wife e%perienced not only by
having spontaneous se%ual intimacy but a deep sense of spiritual communion. Aarital union is two!
way process. '/lusorio vs. /lusorio!6ildner,
Aarriage is definitely for two loving adults who view the relationship with <amor gig nit amorem=
respect$ sacrifice and a continuing commitment to togetherness$ conscious of its value as a sublime
social institution.
Though the courts may not coerce one spouse to live with the other$ the courts may however
provide remedies and sanctions. 0uch as when a spouse abandons another$ the aggrieved spouse may
petition the court for receivership$ for #udicial separation of property or for authority to be the sole
administrator of the absolute community or of the con#ugal partnership property. -pon a #udicial
declaration of abandonment of his or her children$ the parent concerned may li"ewise be deprived of
parental authority. The deserted spouse cannot li"ewise be obliged to give support to the other spouse
who refuses to live with him or her without #ust cause.
The law provides sanctions for non!observance of fidelity. The Revised Penal Code penaliDes the
acts of contracting two or more marriages and of having e%tramarital affairs and the spouse who is
guilty of adultery or concubinage is not entitled to support from the other spouse.
The :amily Code also considers se%ual infidelity as a ground for legal separation under Art. 11$
paragraph +. (egal separation does not dissolve the marriage tie$ does not authoriDe the parties to
remarry but allows both spouses to live separately from each other.
The fact that there the Bew Civil Code now addresses the se%ual infidelity as a ground for legal
separation re;uires a single act of se%ual intercourse on the part of the husband and wife with a person
other than their spouse had ac"nowledged ine;uality for the previous cause of legal separation between
husbands and wives$ which was adultery and concubinage accordingly. (egal 0eparation may be
obtained by aggrieved spouse aside from prosecuting the erring spouse criminally for adultery or
concubinage.
C. Gender Equality
There e%ist a double!standard in the crimes for marital infidelity in the Philippines which are
Article 333 and Article 334.
(abels are pre#udicial to women for there is a name to call the married woman and the man she
committed adultery with but the married man does not while the women he committed adultery with is
labeled as a concubine or mistress.
A mistress is defined according to the case of People v. Eesus Cilao.
The basis of the law was the societal norms of the Philippines in 4++8 and our country in the )4st
century progressed to promote gender e;uality therefore our laws must reflect the same respect to the
e;uality.
A law that is un#ust and discriminatory$ blind in the presence of incontrovertible wrongdoing$
must be amended.
The re!evaluation of obsolete articles in the Revised Penal Code led to revisions and
amendments. 2ne such e%ample is the inclusion of men as a a victim and offended party to the crime of
Rape.
Atty. @valyn -rsua argues$ Fto guard against the introduction of illegitimate children into the
family.F Philippine laws on adultery and concubinage simply reflect society=s double standard in the
treatment of se%ual infidelity.
III. CONCU!ION
Currently$ the Revised Penal Code had established a callous and ineffective crime of
Concubinage.
I". RECO##ENDATION
/t is recommended to amend Article 334 of the Revised Penal Code. The amendment can be made
by deleting the phrase <under scandalous circumstances= and increasing the penalty of the crime of
Concubinage. Removing the phrase <under scandalous circumstances= results to the commission of the
crime of Concubinage by any husband who shall have se%ual intercourse with a woman not his wife.
0enate 6ill )*41 sponsored by 0enator @dgardo E. Angara passed on ! contains a similar
proposition. 7ith the addition of ;ualifying the penalty of the concubine.
The two succeeding Articles 333 and 334 can be amended to be consolidated into one single
article of Adultery for both married parties with the same re;uisites$ as well as penalty.
0enator Richard 3ordon who sponsored two bills with the same purpose as stated above and
stated in a press release:
0enate 6ill Bos. 435) and 4353 see" to retain only one of these crimes and repeal the other. The
retained crime of either adultery or concubinage will then become marital infidelity that will be made
applicable to both husband and wife. This legislative measure implements the 0tate policy under the
Constitution on the fundamental e;uality before the law of women and men.&
The ne%t best thing to do is to resort to the special crime of marital infidelity under the
Psychological Giolence provision of RA >)5) or the Anti!Giolence Against 7omen and Children Act
of )**4&.
RA >)5) defines psychological violence as:
acts or omissions causing or li"ely to cause mental or emotional suffering of the victim such as
but not limited to intimidation$ harassment$ stal"ing$ damage to property$ public ridicule or humiliation$
repeated verbal abuse and marital infidelity. /t includes causing or allowing the victim to witness the
physical$ se%ual 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 in#ury to pets or to unlawful or unwanted
deprivation of the right to custody andHor visitation of common children.&