I. Nature of Adultery and Concubinage as Crimes Under the Revised Penal Code

Adultery and concubinage remain criminal offenses under the Revised Penal Code (RPC) of the Philippines, as amended. These crimes are classified as private crimes or crimes against chastity, specifically governed by Articles 333 and 334 in relation to Article 344 of the RPC.

Adultery (Art. 333): 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.
Concubinage (Art. 334): Committed by 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.

These offenses are inherently relational — the participation of both the married person and the paramour is essential. Penalty for adultery is prision correccional in its medium and maximum periods for both offenders. For concubinage, the husband suffers prision correccional in its minimum and medium periods, while the mistress suffers only destierro.

II. Prosecution of Adultery and Concubinage: The Fundamental Rule of Article 344

Article 344 RPC is the cornerstone provision:

“The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended spouse cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.”

Key consequences flowing from this provision:

The crime can only be prosecuted upon the sworn complaint of the offended spouse. The State, through the prosecutor, has no independent authority to initiate prosecution.
The complaint must implead both the erring spouse and the paramour (if both are alive). A complaint against only one is fatally defective.
Consent to the adulterous/concubinary relation, or pardon of the offenders, absolutely bars the offended spouse from filing the complaint.

III. Pardon in Adultery and Concubinage: Express and Implied (Condonation)

Unlike the crimes of seduction, abduction, rape, and acts of lasciviousness (where Article 344 expressly requires that pardon be “express”), pardon in adultery and concubinage may be express or implied.

A. Express Pardon

This is manifested by clear, unequivocal acts or statements of forgiveness, such as:

A sworn affidavit of desistance executed before the prosecutor or court expressly pardoning both offenders.
A joint affidavit of the spouses declaring reconciliation and withdrawal of the complaint.
Verbal or written declaration of forgiveness communicated to the offenders or to the court.

Express pardon extinguishes criminal liability at any stage of the proceedings, even after conviction but before the judgment becomes final (People v. Infante, G.R. No. L-1033, October 25, 1949, reaffirmed in numerous subsequent cases).

B. Implied Pardon or Condonation

Condonation is forgiveness by conduct. The Supreme Court has consistently ruled that continued marital cohabitation after full knowledge of the infidelity constitutes condonation.

Leading cases:

People v. Schneckenburger (73 Phil. 413, 1941) – The husband’s continued cohabitation with his wife after discovering her adultery was held to be condonation, barring prosecution.
People v. Infante (supra) – The Court explicitly ruled: “Condonation is implied from sexual intercourse or cohabitation after knowledge of the criminal act. Such condonation extinguishes the criminal action against both the guilty spouse and the paramour.”
U.S. v. Topiño (35 Phil. 901, 1916) – Early jurisprudence already recognized that voluntary cohabitation after knowledge amounts to pardon.
People v. Zapata and Bondoc (88 Phil. 688, 1951) – Reconciliation and resumption of conjugal relations constitute condonation.
Ligtas v. CA (G.R. No. L-47514, August 31, 1978) – Even after filing of the complaint, subsequent reconciliation and cohabitation can justify dismissal of the case.

The rationale is that the law considers marriage a sacred institution, and the State yields to the offended spouse’s decision to preserve it through forgiveness.

C. What Constitutes Sufficient Condonation by Cohabitation?

Sexual intercourse after knowledge of the offense is the strongest evidence of condonation (People v. Infante).
Resumption of normal husband-and-wife relations (living under one roof, eating together, mutual support) even without proven sexual intercourse may suffice if it demonstrates clear intent to forgive and restore marital harmony.
Mere tolerance or forced cohabitation (e.g., for economic reasons or for the children) without reinstatement of full conjugal relations does not necessarily amount to condonation (though courts lean heavily toward finding condonation in ambiguous cases to protect family unity).

IV. Scope and Effect of Pardon/Condonation

Extinguishment of Criminal Liability – Once validly given, pardon or condonation extinguishes the criminal action entirely as to both offenders. The paramour benefits even if the forgiveness was directed only at the guilty spouse, because the offense is indivisible (People v. Infante; People v. Zapata).
Effect on Pending Case – The offended spouse may withdraw the complaint at any time before judgment becomes final. Courts routinely grant motions to dismiss based on reconciliation and desistance.
Effect on Executed Penalty – Pardon given after final judgment can remit the unserved portion of the penalty, though this is extremely rare in practice.
Irrevocability – Once condonation is consummated (especially by sexual intercourse), it cannot be revoked by subsequent separation or filing of a new complaint for the same act.

V. Limitations and Exceptions to Condonation

Each Act of Adultery is a Separate Offense
Condonation of one or several past acts does not extend to future acts of infidelity.
Example: If the wife commits adultery in 2023, the husband condones it by resuming relations, but the wife commits adultery again in 2025 — the husband may file a new complaint for the 2025 act (People v. Schneckenburger; David v. CA, G.R. No. 111168, June 13, 1997).
Conditional Forgiveness
If forgiveness is granted upon an express or implied condition (e.g., “I forgive you if you never see him again”), and the condition is violated, the pardon is without effect, and prosecution may proceed (Constantino v. People, G.R. No. 225696, April 8, 2019).
Multiple Paramours
Condonation of adultery with one paramour does not bar prosecution for adultery committed with a different paramour, even during the same period, if the offended spouse was unaware of the other relation.
Knowledge Requirement
There can be no condonation without full knowledge of the adulterous act. Mere suspicion or rumor is insufficient.
No Condonation of Concubinage by Mere Tolerance of Mistress Outside Conjugal Home
If the husband keeps a mistress outside the conjugal dwelling without scandalous circumstances, and the wife merely tolerates it without resuming full conjugal relations, courts may not find condonation.

VI. Practical Consequences in Modern Philippine Practice (as of 2025)

Although adultery and concubinage remain in the statute books, criminal prosecutions are now exceedingly rare due to:

Widespread judicial recognition of condonation upon proof of continued cohabitation or reconciliation.
Prosecutors’ policy of dismissing cases upon affidavit of desistance and evidence of reconciliation.
Cultural and social shifts that view criminal prosecution as destructive to family unity.
Preference for civil remedies (legal separation, declaration of nullity, damages under Art. 26 and 35, Family Code, or psychological violence under RA 9262 when applicable).

Nevertheless, the criminal remedy remains available when the offended spouse genuinely refuses to condone the infidelity and insists on prosecution.

VII. Conclusion

Under Philippine criminal law, the offended spouse holds absolute dominion over the prosecution of adultery and concubinage. Condonation — whether express or implied through resumption of marital relations after knowledge of the offense — constitutes irrevocable forgiveness that extinguishes criminal liability for both the erring spouse and the paramour. This rule reflects the law’s paramount policy of preserving marriage and family solidarity over vindictive punishment. Only new, uncondoned acts of infidelity can give rise to fresh criminal liability. Thus, in the vast majority of cases, forgiveness, once genuinely extended, forever closes the door to criminal prosecution for the pardoned offense.