Art. 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.
How is concubinage committed?
The crime of concubinage is committed
in 3 ways:
1. By the husband's keeping a
mistress in the conjugal dwelling; or
2. By his having sexual intercourse,
under scandalous circumstance, with a woman who is not his wife; or
3. By cohabiting with her in any
other place.
What are the elements of concubinage?
1. That the man must be
married;
2. That he committed any of the
following acts:
a. Keeping a
mistress in the conjugal dwelling
b. Having sexual
intercourse under scandalous circumstances with a woman who is not his
wife
c. Cohabiting
with her in any other place;
3. That as regards the woman, she
must know him to be married.
Who are the offenders in the crime of
concubinage?
The married man and the woman who knows
him to be married.
What is the penalty for concubinage?
Prision correccional in
its minimum and medium period. Destierro for
the concubine.
Why is adultery more severely punished
than concubinage?
While both are crimes of marital vow,
the severe penalty of adultery (i.e., each act is separate adultery) may be
justified by the danger of introducing spurious child in the family.
Adultery
makes possible the introduction of another man’s blood into the family so
that the offended husband may have another man’s son bearing his name
and receiving support from him.
Concubinage by keeping a mistress in
the conjugal dwelling
• The wife left the conjugal home
and lived with her parents because of troubles between husband and herself. The
husband took into the house his co-accused and they lived together conjugally.
They were seen feeding and caressing each other.
Held: Guilty of concubinage. When the
mistress lived in the dwelling, 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.
Who is a mistress?
• It is necessary that the woman
is taken by the accused into the conjugal dwelling as a concubine.
What is a conjugal dwelling?
• The home of the husband and
wife even if the wife happens to be temporarily absent on any account.
• A house constructed from
the proceeds of the sale of conjugal properties of the spouses, even if the
wife never had the chance to reside therein.
Sexual intercourse under scandalous
circumstances
• For the
existence of concubinage by having sexual intercourse under scandalous
circumstances, the offender must be so imprudent and wanton as to
offend modesty and that innate sense of morality and decency of the people in the neighborhood.
• It is only when
the mistress (concubine) is kept elsewhere (outside conjugal dwelling) that
scandalous circumstances become an element of the crime. (US. V. Macabagbag,
et. al 31 Phil. 257)
• Scandal is any word or deed that offends public
conscience redounds to the detriment of the feelings of honest persons and
gives occasion to the neighbors spiritual damage or ruin (People v. Santos, et
al. 45 O.G. 2116).
The scandal produced by the concubinage
of a married man occurs not only when: (1) he and his mistress live in the same
room of a house but also when (2) they appear together in public and (3) perform acts in sight of the community
which give rise to criticism and general protest among the neighbors.
• This may be proved by circumstantial
evidence.
• The people in the vicinity are the best witnesses
to prove scandalous circumstances.
• When spies are
employed for the purpose of watching the conduct of the accused and it
appearing that none of the people living in the vicinity has observed any
suspicious conduct on his part in relation with his co-accused, there is no
evidence of scandalous circumstances.
Cohabiting with a woman in any other
place
• Mere cohabitation is
sufficient. Proof of scandalous circumstances is not necessary.
• A married man is not liable for concubinage for
mere sexual relations with a woman not his wife.
• That the
accused is really the father of the child, alone and by itself, is not
sufficient to prove concubinage. Any of the 3 acts of concubinage must be
proved.
Meaning of cohabit
• To dwell together, in the
manner of husband and wife, for some period of time, as distinguished
from occasional, transient interviews for
unlawful intercourse. Hence the offense is not a single act of
adultery; it is cohabiting in a state of adultery which may be a week, a
month, a year or longer.
• There is no concubinage
if a married man is surprised in the act of sexual intercourse with a woman
not his wife in a hotel.
• A person who keeps a
mistress in an apartment furnished by him is not guilty of concubinage if he
does not live or sleep with her in said
apartment.
May a husband be liable for concubinage and adultery at the same time for the same act of illicit intercourse with the wife of another man?
Yes. When a husband commits concubinage with a married woman, he will be liable for adultery and concubinage for the same act of sexual intercourse, provided that the two offended parties, i.e., the husband of his paramour, and his wife files separate cases against him. This is because there are different offended parties and the elements of concubinage and adultery are different, thus, double jeopardy is out of the question.
Who can initiate the action for concubinage?
Only the offended spouse can initiate the action. Both offenders (husband and concubine) must be named in the complaint unless one is already dead which fact must be alleged in the information, otherwise, the information is defective and subject to motion to quash.
Sources:
Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.
Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed.
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