f. Marriage between Offender and Offended Party

Pardon by the offended party

• Express/implied pardon by the offended husband bars prosecution for adultery.
• Sexual intercourse by the offended husband with the offending spouse subsequent to the adulterous conduct constitutes an implied pardon.

Requirements for Pardon to be effective (Art. 344):

• The pardon must come before the institution of the criminal prosecution; and
• Both offenders must be pardoned by the offended party.

Consent is a cause for dismissal of complaint

• Prior consent by the offended husband, or his subsequent pardon of both offenders before institution of the criminal action, bars prosecution for adultery under Article 344 of the Revised Penal Code.
• When consent is given, whether express or implied, the offended husband can no longer institute the criminal complaint.

Elements:

• That the offender has been legally married;
• That the marriage has not been legally dissolved or, in case his or her spouse is absent, he or she has not obtained a judicial declaration of presumptive death under Article 41 of the Family Code;
• That he or she contracts a second or subsequent marriage; and
• That the second or subsequent marriage has all the essential requisites for validity.

Elements:

• The man must be married (even if the marriage may be subsequently declared void);
• He committed any of the following acts:
• Keeping a mistress in the conjugal dwelling,
• Having sexual intercourse under scandalous circumstances with a woman who is not his wife,
• Cohabiting with her in any other place;
• As regards the woman, she must know him to be married.

Effect of Marriage

General Rule: Marriage in good faith of the offender with the offended party extinguishes the criminal action or remits the penalty already imposed upon him. This applies as well to accomplices and accessories-after-the-fact.

Exception: In case of rape, marriage extinguishes the criminal action only as to the principal but not as to the accomplices and accessories. This rule also does not apply to parties guilty of concubinage and adultery.

Art. 266-C. Effect of Pardon. Effect of Marriage

Notes:

• Marriage extinguishes not only the penal action but likewise the penalty imposed, and only as to the principal. Since rape has ceased to be a crime against chastity and is now a crime against persons, it now appears that marriage extinguishes that penal action and the penalty only as to the principal (i.e., husband) and not as to the accomplices and accessories.
• A man who penetrates his wife without her consent or against her will commits sexual violence against her. xxx Besides, a husband who feels aggrieved by his indifferent or uninterested wife’s absolute refusal to engage in sexual intimacy may legally seek the court’s intervention to declare her psychologically incapacitated to fulfill an essential marital obligation. But he cannot and should not demand sexual intimacy from her coercively or violently. (People v Jumawan, GR No 187495)

Art. 266-D. Presumptions