Defenses for Concubinage

DEFENSES FOR CONCUBINAGE: CONCUBINAGE:

In the prosecution for the crime of Concubinage as defined under Article 334 of the Revised Penal Code, the following elements must be present, to wit: 1. The man must be married; 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling, b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife, c. Cohabiting with her in any other place.

That as regards the woman, she must know him to married. Given the foregoing, Bernardo obviously did not keep Violeta as his mistress in the conjugal dwelling. So much so that the complainant failed to concretized. that Bernardo was having sexual intercourse under scandalous circumstance with Violeta under the second way of committing Concubinage. Concubinage. Anent to that, scandal consist in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasions to the neighbors’ spiritual damage or ruin (People vs. Santos, et al., 45 O.G. 2116). The scandal produced by the concubinage of married man occurs not only when (1) he and his mistress live in the same room of a house, but also when (2) they appear together in public, and (3) performs acts in sight of the community which give rise to criticism and general protest among the neighbors. (p. 865, The Revised Penal Code by Reyes, 16th edition)

Complainant supplied two (2) addresses where respondents allegedly cohabited more particularly a) No. 6 St. Luke St., Tierra Vista Heights, Marikina City from 2002 to 2004 and b) No. 8-1 Matimtiman St., Barangay Teacher’s West, Diliman, Quezon City from April 2004 to May 2005. However, this failed to prove the element of “scandalous circumstances” for no statement of witnesses, particularly those living within the vicinity/community, was submitted before this Office to prove that they indeed witnessed respondents living in the above-given addresses, that they appeared together in public, and they performed acts that would be a subject of criticism and general protest in the neighborhood. The least complainant did was to submit the names of her witnesses and the affidavits of her daughters who failed to appear during the preliminary investigation to reaffirm their statements given before a notary public as far as the year 2000

As held, if none of the acts of the defendants were proved by the testimony of the people from the vicinity, there is no scandal. The testimony of the offended wife that in a house she saw her husband and the other woman lying side by side and on several occasions she saw them going together to different places, is not sufficient to convict them for concubinage (U.S. vs. Casipong, et al., 20 Phil. 178, p. 866, The Revised Penal Code by Reyes, 16th edition). Lastly, the following evidence submitted failed to convince us that cohabitation existed, to wit: a. Complainant discovery that Bernardo was cohabiting with Violeta at No. 6 St. Luke St., Tierra Vista Heights, Marikina City from 2002 to 2004 sans any explanation on how it came to her knowledge (par. 7 of the Complaint);

b. Christi Minerva discovered her father in Ali Mall with respondent who was then pregnant (par. 8 and 9 of the Complaint); c. Lea Grace discovery of an address from a piece of paper inside Bernardo’s car purportedly that of No. 8-1 Matimtiman St., Barangay Teacher’s West, Diliman, Quezon City  to which she saw a plump woman wearing shorts and discovered her father ’s car outside said house (par. 10 and 11 of the Complaint); d. Complainant’s statement that she went to the address and saw two children playing with a teenager to which when she asked the latter if it is the residence of the “Estepas” he answered in the affirmative but complainant immediately left the place (par. 12 of the Complaint)

e. Photograph of respondents with their two children; f. Identification Card of Bernardo bearing the name of Violeta as the person to be informed/called in case of emergency; g. Certificate of Live Birth of Bernardo Estepa, Jr., h. Barangay Certificate stating that both respondents has been residing at No. 8-1 Matimtiman St., from April 2004 to May 2005 sans the supporting statement of neighbors to prove that respondents are indeed cohabiting and represented themselves as husband and wife in said community. The element of cohabitation under the third way of committing the crime of concubinage must be proved by convincing evidence. To cohabit means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient interview for unlawful intercourse. (People vs. Benlot, et al., 16 C.A. Rep. 539).

The foregoing documents and allegations failed to prove that Bernardo and Violeta dwell together as husband and wife neither did it provide any evidence to substantiate the circumstances on how “cohabitation” between the respondents existed at No. 6 St. Luke St., Tierra Vista Heights, Marikina City. The fact that complainant discovered Violeta and her children residing at said address and that she bore a child to Bernardo is not sufficient to prove cohabitation within the meaning of law. Needless to say, there was no statement to the fact that a witness saw the person of Bernardo at said address and/or that he was residing thereat. In Bitangcor v. Tan, {112 SCRA 113; See also A. Sempio-Diy, Handbook on the Family Code of the Philippines 115-117 (1995)} the Supreme Court held that the term “cohabitation” or “living together as husband and wife” means not only residing under one roof, but also having repeated sexual intercourse. Cohabitation, of course, means more than sexual intercourse, especially when one of the parties is already old and may no longer be interested in sex. At the very least, cohabitation is the public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such. Secret meetings or nights clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation; they are merely meretricious. Notably, complainant herself admitted to be Bernardo’s concubine for the latter is still married to one Edelmira G. Suavillo when they contracted their marriage. This has been vocally stated in her Sworn Statement submitted in the Physical Injury case filed in Quezon City (please see Annex “1 -C” of Rejoinder. Hence, violating the time tested principle that “HE WHO COMES TO COURT MUST COME IN CLEAN HANDS”.

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