Concubinage, A334 Revised Penal Code

Concubinage is an offense whereby a married man has sexual intercourse with a woman not his wife under scandalous circumstances.

1. Concept

Concubinage – is “committed by a married man who has carnal knowledge of a woman not his spouse under scandalous circumstances.” (Anonymous Complaint v. Dagala, A.M. No. MTJ-16-1886, July 25, 2017, Per Leonen, J., Concurring and Dissenting Opinion)

a. Legal basis

Article 334. Concubinage. – Any husband who shall 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, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

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2. Modes of commission

The following are the modes of committing the offense:

1) Keeping a mistress in the conjugal dwelling;

2) Sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or

3) Cohabiting with a woman who is not his wife in any other place. (Ocampo v. People, En Banc, G.R. No. L-47756, June 10, 1941, Per Morgan, J.; Buseugo v. Ombudsman, G.R. No. 196842, October 9, 2013, Per Perez, J.)

a. Mode 1: Keeping a mistress in conjugal dwelling

Elements of the offense:

1) The offender is a married man; and

2) He keeps a mistress in the conjugal dwelling. (REVISED PENAL CODE, Article 334)

1) Element 1: Married man

The offender is specified to be a married man. Thus, an unmarried man or a woman cannot be prosecuted for concubinage under this provision.

2) Element 2: Keeps a mistress in conjugal dwelling

The word “mistress” refers to a woman paramour or lover. Hence, as used in this provision, mistress excludes another man or considered a man under the law. To be clear, for purposes of this article, what matters is what gender is stated on a person’s birth certificate.

b. Mode 2: Sexual intercourse under scandalous circumstances

Elements of the offense:

1) The offender is a married man; and

2) He has sexual intercourse, under scandalous circumstances, with a woman who is not his wife. (REVISED PENAL CODE, Article 334)

1) Element 1: Married man

See earlier related discussion.

2) Element 2: Sexual intercourse under scandalous circumstances

The offender has sexual intercourse, under scandalous circumstances, with a woman who is not his wife. The “scandalous circumstances” is the gravamen for the offense of concubinage.

As contemplated in the provision, the sexual intercourse contemplates a woman and thus excludes another man or considered a man under the law. (See above discussion re gender stated on the birth certificate.)

c. Mode 2: Cohabitation with another woman

Elements of the offense:

1) The offender is a married man; and

2) He cohabits with a woman who is not his wife in any other place. (REVISED PENAL CODE, Article 334)

1) Element 1: Married man

See earlier related discussion.

2) Element 2: Cohabitation with another woman

The offender cohabits with a woman who is not his wife in any other place. To cohabit means to live together like husband and wife.

Since the first mode contemplates cohabitation within the offender’s conjugal dwelling, this last mode contemplates any other place that is not the conjugal dwelling. Hence, the other place may include another house owned as a conjugal asset by the offender with his current wife or owned separately (or paraphernal property) by the husband. It may also include the paramour or lover’s own dwelling.

Ocampo v. People, En Banc, G.R. No. L-47756, June 10, 1941, Per Morgan, J.:

• We are here concerned only with the third way of committing the offense under which [the Accused] was convicted. The term “cohabit” means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient interviews for unlawful intercourse. (People vs. Pitoc, 43 Phil., 758.) And, whether an association, for illicit intercourse, has been such as to constitute an unlawful assumption of the conjugal relation, is, in every case a question of fact (74 A. L. R., 1363), and the extent of such association as to constitute a cohabitation within the meaning of the law, is a matter of court’s appreciation.

• In the instant case, [the Accused]’s conduct with his coaccused was not confined to isolated interviews for unlawful intercourse. He and his coaccused dwelt together as husband and wife in the same house in Naga, Camarines Sur, where they were seen attending shows and dances; again, in Tiwi, Albay, they dwelt together as husband and wife in the same house for seven days and nights where they slept together and alone in one room. We are of the opinion and so hold that such association is sufficient to constitute a cohabitation within the meaning of the law even disregarding proofs of actual sexual intercourse.

• [The Accused] maintains that the letter (Exhibit 2) sent to him by complainant in the latter part of June, 1937, constitutes consent to his illicit relations and is, therefore, a condonation within the provisions of the second paragraph of article 344 of the Revised Penal Code. The letter was construed by the trial court under the facts and circumstances of the case as not constituting consent or condonation, and this finding has not been reversed by the Court of Appeals. At this stage of the proceeding we cannot review the finding which involves questions of fact.

3. Things to note

The following are some additional things to note about this offense.

a. Condonation

Buseugo v. Ombudsman, G.R. No. 196842, October 9, 2013, Per Perez, J.:

• [A]lfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of his womanizing and yet continuing with their relationship as demonstrated in Rosa’s annual visits to him in Davao City.

• We are not convinced.

• Old jurisprudence has held that the cynosure in the question of whether the wife condoned the concubinage lies in the wife’s “line of conduct under the assumption that she really believed [her husband] guilty of concubinage…”

• [R]osa’s admission was that she believed her husband had stopped womanizing, not that she had knowledge of Alfredo’s specific acts of concubinage with Sia and de Leon, specifically keeping them in the conjugal dwelling. This admission set against the specific acts of concubinage listed in Article 33419 of the Revised Penal Code does not amount to condonation. Their continued cohabitation as husband and wife construed from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s relations with his concubines.

3A. Procedural

a. Common provisions

This offense shares common provisions with other offenses under Title XI of the Revised Penal Code – Crimes Against Chastity. See: Crimes Against Chastity

b. Pending case for nullity of marriage, not a prejudicial question

Is a pending civil case for nullity of marriage a prejudicial question to a criminal case for concubinage? This was tackled in the case of Beltran v. People where Supreme Court answered in the negative.

Beltran v. People, G.R. No. 137567, June 20 2000, Per Buena, J.:

• The pendency of the case for declaration of nullity of [the Accused]’s marriage is not a prejudicial question to the concubinage case. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear not only that the said civil case involves the same facts upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the aforesaid civil action, the guilt or innocence of the accused would necessarily be determined.

• In Domingo vs. Court of Appeals, this Court ruled that the import of [Article 40 of the Family Code] is that for purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes of other than remarriage, other evidence is acceptable…

• So that in a case for concubinage, the accused, like the herein [the Accused] need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void.

• With regard to [the Accused]’s argument that he could be acquitted of the charge of concubinage should his marriage be declared null and void, suffice it to state that even a subsequent pronouncement that his marriage is void from the beginning is not a defense.

• Thus, in the case at bar it must also be held that parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage assumes the risk of being prosecuted for concubinage. The lower court therefore, has not erred in affirming the Orders of the judge of the Metropolitan Trial Court ruling that pendency of a civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage.

Landicho v. Relova, G.R. No. L-22579, February 23, 1968, Per Fernando, J.:

• Assuming that the first marriage was null and void on the ground alleged by [the Accused], that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy.

c. Pardon or condonation, when made

Ligtas v. CA, G.R. No. L-47498, May 7, 1987, Per Gancayco, J.:

• In this jurisdiction pardon for adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. The pardon can be express or in applied. Thus, when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their adulterous act this is a case of express pardon. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. However such consent or pardon cannot be implied when the offended party allows his wife to continue living in the conjugal home after her arrest only in order to take care of their children.

[Article 344 of the Revised Penal Code] provides for the extinction of criminal liability in private crimes. For the crimes of adultery and concubinage, the pardon extended by the offended spouse results in the extinction of the liability of the offender. On the other hand, in seduction, abduction, rape and acts of lasciviousness, two modes are recognized for extinguishing criminal liability – pardon and marriage. In all cases, however, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. (People v. Dela Cerna, En Banc, G.R. Nos. 136899-904, October 9, 2002, Per Corona, J.)

4. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Concubinage vs Adultery

Concubinage is committed by a married man who has carnal knowledge of a woman not his spouse under scandalous circumstances. It is not simply the presence of illicit carnal knowledge that the law requires. There must be separate proof that this was done “under scandalous circumstances,” different from the act of sexual intercourse. (Anonymous Complaint v. Dagala, A.M. No. MTJ-16-1886, July 25, 2017, Per Leonen, J., Concurring and Dissenting Opinion)

Adultery, on the other hand, is committed by a married woman who has a relationship with a man who is not her husband. For adultery to happen, it is not material that the man is likewise married. Likewise, the man may be convicted on the basis of conspiracy with the married woman. (Ibid.)

References

• Title XI – Crimes Against Chastity, Act No. 3815, Revised Penal Code

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/Updated: May 20, 2023