Patrick James Narvasa
Marital infidelity is a violation or breach of good faith and confidence by one or both spouses to the matrimonial vows. It is also a major spousal pressure that eventually causes the breakdown of marriage as a foundation of the family.
Our present laws on adultery and concubinage under the Revised Penal Code both constitute marital infidelity, but these are deemed as discriminatory and nebulous. While both aim to punish marital infidelity of the spouses, there is higher burden put on wives than on husbands. This disparity in the treatment of the law is seen in the evidentiary requirement for the two crimes and there is a huge underlying difference if the infidelity was committed by the male or female spouse. For the wife, adultery means one act of sexual intercourse provable through circumstantial evidence while for the husband, evidentiary requirement for concubinage is higher by proving that the sexual intercourse with a woman who is not his wife is under scandalous circumstances; that he is keeping another woman in the conjugal home; or that he is cohabiting with her in another dwelling. Our present law also imposes higher penalty to married women who commit infidelity as compared to married men1 . The usual reasoning for the distinction is that the infidelity of the wife can result in introducing alien blood into the family; that an illegitimate child could be passed off as the husband’s and he will end up supporting and giving his name to the said child. It is also claimed that this probability does not arise if it is the husband who commits concubinage.
It should be noted that as private crimes, our present law on adultery and concubinage regards the privacy of the offended party as more important than the disturbance to the order of society, as it gives the offended party the preference whether or not to sue. The moment the