Criminal Law

Pilapil v. Ibay-Somera G.R. No. 80116 June 30, 1989 Adultery


Petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. 

After about three and a half years of marriage, marital conflicts lead the private respondent obtained a decree of divorce on the ground of failure of marriage of the spouses from the Schoneberg Local Court, Federal Republic of Germany

More than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner “had an affair with a certain William Chia and with yet another man named Jesus Chua sometime in their marriage”. 

The Assistant Fiscal recommended the dismissal of the cases on the ground of insufficiency of evidence. However, upon review, the respondent city fiscal approved a resolution directing the filing of two complaints for adultery against the petitioner. 

The complaints were accordingly filed and were eventually raffled to two branches of the RTC Manila.

Petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed.

The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions.

Accordingly, the proceedings in Criminal Case No. 87-52434 were suspended. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435.

Petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. A motion to quash was also filed in the same case on the ground of lack of jurisdiction, which motion was denied by the respondent judge. 

Petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction “to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint.”


Whether or not a criminal action for adultery may be instituted after a decree of divorce has been obtained.


Under Article 344 of the RPC, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding  and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. 

In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

In the so-called “private crimes” or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

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