Adultery in Flagrante Delicto

11 Feb


Lighting did struck twice on me on the same spot – unbelievable! It was a case of adultery in flagrante delicto asked with twists in our Criminal Law subject.

First instance: The topic was about mitigating circumstances. I was called for recitation. The professor was discussing certain instances where incomplete (self) defense will not justify or exempt a person from criminal liability. Instead, a person will be liable but will be entitled of reduction of penalty. I have correctly answered all the questions except for the last one.

Professor: X saw his wife on bed having sex with another man. X was so blinded with hate that he killed his wife and paramour. Can X claim of the mitigating circumstance of “passion and obfuscation”?

Me: Yes.

My reason for answering “Yes” was influenced by previous discussions that there is no reasonable necessity to kill the persons. X is liable but may avail of the mitigating circumstance.

Professor: The correct answer is “No”. It was a case of adultery in flagrante delicto. The killing of wife and paramour is justified, as taken against his honor.

Second instance: The topics discussed are parricide, homicide and murder. It was settled that parricide is a special name for homicide committed against ascendants and descendants including the spouse. It was not me on deck for recitation but the discussion is interesting. The question is practically a rephrase.

Professor: Under Article 247 of the Revised Penal Code, the penalty for exceptional circumstance is Destierro. What do you think is the modifying circumstance (if any) why the penalty is Destierro instead of Reclusion Temporal or higher penalty?

Student 1: Mitigating circumstance sir, passion or obfuscation.

Professor: Any other?

Student 2: Justifying circumstance sir, defense of honor.

Professor: Are you sure? Do you think the act is justified?

Me: Yes sir, the act falls under justifying circumstances.

Professor: It is not justifying, because it lacks one element: reasonable necessity of the killing.

I was “dead” within a few seconds after hearing that. I can’t believe my senses. I cannot possibly commit the same mistake with the same question. I confirmed with the Professor after class if indeed killing in flagrante delicto of wife and paramour is really NOT justifying? The Professor confirmed, it was NOT justifying.

Now I have to seek the wisdom of SC decisions to build up my foundations shattered by the flip-flopping answer.   In People vs. Wagas (G.R. No. 61704, March 8, 1989), the Court said:

The vindication of a Man’s honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter. (emphasis and underscoring supplied)

 Let us look on Article 247 of the Revised Penal Code:

Article 247.Death or physical injuries inflicted under exceptional circumstances. – Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

Technically, destierro as a penalty under the above article is actually not a penalty for a distinct crime. In People vs Araquel (G.R. No. L-12629, December 9, 1959):

As may readily be seen from its provision and its place in the Code, the above-quoted article, far from defining a felony, merely, provides or grants a privilege or benefit–amounting practically to an exemption from an adequate punishment – to a legally marries person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused – who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be – is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. x x x (emphasis supplied)

It must be noted however, for the killing to be justified must be a result of the impulse during the sexual act or immediate thereafter, and that no other external factors like revenge, resentment or other evil motive.

One possible reconciliation I can agree with is that the act is not a defense of person (justifying circumstance) but an absolutory cause. Such are defenses which have the same effects as the exempting circumstances but they are not among those enumerated in Article 12. They are found in certain Articles of the Revised Penal Code or are developed by jurisprudence. (

  1. They are based on public policy
  2. Examples of those in the RPC include: non-liability for an attempted felony due to voluntary desistance; Death/Physical Injuries Under Exceptional Circumstances
  3. Those recognized and developed by jurisprudence include: mistake of fact, set-up/frame up, instigation

There is no conclusion yet. So now, we go back to Criminal Law question:

You choose your best answer. 🙂


Posted by on February 11, 2013 in Criminal Law


Tags: , , , , , , , , , ,

5 responses to “Adultery in Flagrante Delicto

  1. Don Primodi

    February 11, 2013 at 10:24 pm

    reading upon the actual case of Nuepe Wagas, the word “justified” was not used in a way that it will be synonymous to the term “justifying circumstance”. the word “justified” here means that he has committed a crime but it is allowed by law because of adultery in flagrante delicto. Whereas “Justifying Circumstance” means that the act committed is not considered as a crime, therefore he is exempted from criminal liability.

    Also, using the case of Nuepe Wagas as a form of jurisprudence to support this argument is inconclusive because in the end, Wagas was convicted.

  2. engrjhez

    February 11, 2013 at 11:14 pm

    Thank you for the comment.

    So how do we classify the case? The ruling of the Court in Wagas case is actually not the “meat” that we are trying to extract here. The reason for conviction there is because he (Wagas) was not able to sufficiently establish catching his wife and another man in the sexual act. The case was quoted to illustrate the view of the court should the facts satisfied the elements of the defense.

    Hope you can also cast your vote in the poll. 🙂

  3. Wilmar

    July 22, 2017 at 9:41 pm

    This is criminal law?


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