256 Phil.

407

SECOND DIVISION
[ G.R. No. 80116, June 30, 1989 ]
IMELDA MANALAYSAY PILAPIL, PETITIONER, VS. HON. CORONA
IBAY-SOMERA, IN HER CAPACITY AS PRESIDING JUDGE OF THE
REGIONAL TRIAL COURT OF MANILA, BRANCH XXVI; HON. LUIS C.
VICTOR, IN HIS CAPACITY AS THE CITY FISCAL OF MANILA; AND
ERICH EKKEHARD GEILING, RESPONDENTS.

DECISION

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce,
only to be followed by a criminal infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkchard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedcnsweilcr in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980.[1]

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they
had been living apart since April, 1982.[2]

Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where
the same is still pending as Civil Case No. 83-15866.[3]

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody
of the child was granted to petitioner. The records show that under German law said court was
locally and internationally competent for the divorce proceeding and that the dissolution of said
marriage was legally founded on and authorized by the applicable law of that foreign
jurisdiction.[4]

On June 27, 1986, or 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 as early as
1982 and with yet another man named Jesus Chua sometime in 1983." Assistant Fiscal Jacinto A.
de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases
on the ground of insufficiency of evidence.[5] However, upon review, the respondent city fiscal
approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery
against the petitioner.[6] The complaints were accordingly filed and were eventually raffled to
two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines
vs. Imelda Pilapil and William Chia" docketed as Criminal Case No. 87-52435, was assigned to
Branch XXVI presided by the respondent judge; while the other case "People of the Philippines
vs. Imelda Pilapil and James Chua" docketed as Criminal Case No. 87-52434 went to the sala of
Judge Leonardo Cruz, Branch XXV, of the same court.[7]

On March 14,1987, 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.[8] A
similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The
Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer further proceedings" and to
elevate the entire records of both cases to his office for review.[9]

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon.[10] As a consequence, Judge Leonardo Cruz suspended proceedings
in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date,
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.[11] A motion to quash was also filed in the same case on the
ground of lack of jurisdiction,[12] which motion was denied by the respondent judge in an order
dated September 8, 1987. The same order also directed the arraignment of both accused therein,
that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner
refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and the former was ordered detained until she
submitted herself for arraignment.[13] Later, private respondent entered a plea of not guilty.[14]

On October 27, 1987, 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."[15]
On October 21,1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoñez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner.[16]

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code,[17] 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.[18] 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[19] 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 abovementioned do not apply to adultery and concubinage. It is significant that
while the State, as parens partriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of 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.

The absence of an equivalent explicit rule in the prosecution criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and fundamentally commenced by the State,
through the People of the Philippines, the offended party being merely the complaining witness
therein. However, 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 there from, is a
matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial.[20] Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal action for adultery.
This is a logical consequence since the raison d'etre of said provision of law would be absent
where the supposed offended party had ceased to be the spouse of the alleged offender at the
time of the filing of the criminal case.[21]

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his
capacity to bring the action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time when he is without
the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue
as to when precisely the status of a complainant as an offended spouse must exist where a
criminal prosecution can be commenced only by one who in law can be categorized as possessed
of such status. Stated differently and with reference to the present case, the inquiry would be
whether it is necessary in the commencement of a criminal action for adultery that the marital
bonds between the complainant and the accused be unsevered and existing at the time of the
institution of the action by the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia
with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer
has the right to institute proceedings against the offenders where the statute provides that the
innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce subsequently granted can have
no legal effect on the prosecution of the criminal proceedings to a conclusion.[22]

In the cited Loftus case, the Supreme Court of Iowa held that —

'"No prosecution for adultery can be commenced except on the complaint of the husband or
wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to
have been committed, he had ceased to be such when the prosecution was begun; and appellant
insists that his status was not such as to entitle him to make the complaint. We have repeatedly
said that the offense is against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion that the unoffending spouse
must be such when the prosecution is commenced." (Italics supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that
in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as
of the time the complaint was filed. Thus, the person who initiates the adultery case must be an
offended spouse, and by this is meant that he is still married to the accused spouse, at the time of
the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized
in the Philippines insofar as private respondent is concerned[23] in view of the nationality
principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,[24] after a divorce was granted by a
United States court between Alice Van Dorn, a Filipina, and her American husband, the latter
filed a civil case in a trial court here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and that the plaintiff be granted the right
to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the
error of such stance, thus:

"There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union, xxx.

"It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid xxx
according to their national law. xxx

"Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise
control over conjugal assets, x x x"[25]

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this
case. When said respondent initiated the divorce proceeding, he obviously knew that there would
no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be
one of the reasons for the particular formulation of our law on adultery,[26] since there would
thenceforth be no spousal relationship to speak of. The severance of the marital bond had the
effect of dissociating the former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void," the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect." Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of the marriage
was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, [27] must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby
made permanent.

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, and Sarmiento, JJ., concur.

Paras, J., concurs in a separate opinion.

[1]
Rollo, 5, 29.
[2]
Ibid., 6, 29.
[3]
Ibid., 7.
[4]
Ibid., 7, 29-30; Annexes A and A-l, Petition.
[5]
Ibid,, 7, 178.
[6]
Ibid., 8; Annexes B, B-l and B-2, id.
[7]
Ibid., 8-9, 178.
[8]
Ibid., 9, 178; Annex C, id.
[9]
Ibid., 9-10, 178; Annex D, id.
[10]
Ibid., 9; Annexes E and E-l, id.
[11]
Ibid., 10; Annex F, id.
[12]
Ibid., 9, 179; Annex G, id.
[13]
Ibid., 10; Annex H, id.
[14]
Ibid., 105.
[15]
Ibid., 11.
[16]
Ibid., 311-313.
[17]
Cf. Sec. 5. Rule 110, Rules of Court.
[18]
People vs. Mandia, 60 Phil. 372, 375 (1934); People vs. Zurbano, 37 SCRA 565, 569 (1971);
People vs. Lingayen, G.R. No. 64556, June 10, 1988.
[19]
Valdepeñas vs. People, 16 SCRA 871 (1966); People vs. Babasa, 97 SCRA 672 (1980).
[20]
Samilin vs. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-Teves. e! at. vs.
Vamenla, et al., 133 SCRA 616 (1984).
[21]
Rollo, 289.
[22]
2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW 906, 907; Re Smith» 2 Okla. 153, 37 p.
1099; State vs. Russell, 90 Iowa 569, 58 NW 915.
[23]
Redo vs. Harden, 100 Phil. 427 (1956).
[24]
139 SCRA 139, 140 (1985).
[25]
The said pronouncements foreshadowed and are adopted in the Family Code of the
Philippines (Executive Order No. 209, as amended by Executive Order No. 227, effective on
August 3, 1988), Article 26 whereof provides that “(w)here marriage between a Filipino citizen
and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity
to remarry under Philippine law."
[26]
Us. vs. Mala, 18 Phil. 490 (1911).
[27]
Footnote 20. ante.

CONCURRING OPINION

PARAS, J.:

It is my considered opinion that regardless of whether We consider the German absolute divorce
as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of
his obtaining an absolute divorce in Germany can no longer be considered as the offended party
in case his former wife actually has carnal knowledge with another, because in divorcing her, he
already implicitly authorized the woman to have sexual relations with others. A contrary ruling
would be less than fair for a man, who is free to have sex will be allowed to deprive the woman
of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and binding in
the Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in
what he calls a "socially grotesque situation," where a Filipino woman is still married to a man
who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury to the people
or residents of the forum. Consequently since to recognize the absolute divorce as valid on the
part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would
be still valid under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be considered void both
with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, ( 139 SCRA [1985]) cannot apply despite the fact that
the husband was an American with a Filipino wife because in said case the validity of the
divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Source: Supreme Court E-Library