Gue v. Gue and People, G.R. No. 226171 (June 3, 2026)

To constitute a valid in flagrante delicto or hot pursuit arrest, it is indispensable that the arresting officers have personal knowledge of the fact of the commission of an offense.¹

This resolves a Petition for Review on Certiorari² under Rule 45 of the Rules of Court assailing the Court of Appeals’ Decision³ and Resolution.⁴ The Court of Appeals affirmed the May 30, 2011⁵ and March 13, 2012⁶ Resolutions of the Regional Trial Court which ordered the suspension of the proceedings and the remand of the case for preliminary investigation.⁷

Wilson Gue (Wilson) and Eileen Cagalingan Gue (Eileen) were married in 1994. They had two children.⁸

Sometime in 2007, Eileen met Philippe Roland Codes (Codes)⁹ at Fitness First.¹⁰ Codes was Eileen’s physical therapist and fitness trainer.¹¹ It was during this time that Wilson suspected Eileen and Codes to have an illicit relationship.¹²

According to Wilson, he confirmed their relationship in 2009 through “numerous events and overwhelming circumstantial evidence.”¹³ Eileen allegedly rented a private condominium unit under Codes’s name. The unit was located at Unit S, 3ʳᵈ Floor, Mercedes Street, Barangay Maybunga, Pasig City.¹⁴

On August 24, 2009, Wilson filed a Complaint for Adultery against Eileen and Codes with the National Bureau of Investigation (NBI).¹⁵

In the afternoon of September 4, 2009, Wilson received information that Eileen’s car was parked on Mercedes Street. Since he was already within the vicinity, he saw his wife and Codes arrive at the building of their condo unit onboard Eileen’s vehicle. He alleged that his friend, who was the owner of the room beside Codes’s unit, gave him access to the building.¹⁶

Wilson then contacted NBI Senior Agent Arnold Rosales (Rosales) to seek the NBI’s assistance. While waiting, Wilson followed Eileen and Codes who were already inside Unit S.¹⁷ He narrated that he heard his wife and Codes groaning through the door. He then went up to the ceiling of the common area and saw the two together in bed caressing and touching each other’s private parts. He witnessed them “in the actual start of their sexual intercourse.”¹⁸

The NBI operatives arrived and met with Wilson at around 5:30 in the afternoon. After verifying with the Land Transportation Office that Eileen is the registered owner of the parked Toyota RAV 4, the NBI operatives and Wilson proceeded to Codes’s condo unit. They confirmed Eileen and Codes’s presence inside the unit when they heard their voices.¹⁹ Thereafter, they entered the room through the unlocked door and saw Eileen and Codes “lying in bed caressing and embracing each other’s body in a very compromising position[.]”²⁰

Eileen and Codes were arrested by the NBI operatives. Eileen resisted arrest while Codes admitted to having a four-month relationship with her. They were later brought to the NBI office in Manila.²¹

On September 8, 2009, Eileen and Codes underwent an inquest investigation.²² On the same date, an Information²³ was filed against Eileen and Codes charging them with adultery:

On or about September 4, 2009, in Pasig City and within the jurisdiction of this Honorable Court, the accused, Eileen Cagalingan Gue, being then legally married to the complainant Wilson Co Gue, they having been united in lawful wedlock and without the same having been lawfully dissolved, did then and there willfully, unlawfully and feloniously had carnal knowledge with her co-accused Philippe Bernabe Codes, a man not her husband, who, knowing that said Eileen Cagalingan Gue is a married woman, had carnal knowledge of her.

Contrary to Law.²⁴

The case was docketed as Criminal Case No. 107014 and raffled to Branch 70 of the Metropolitan Trial Court, Pasig City.²⁵

On October 2, 2009, Eileen filed a Motion²⁶ to Quash the Information before the Metropolitan Trial Court, or in the alternative, for the case to be remanded for preliminary investigation. Codes manifested that he was joining Eileen’s Motion.²⁷

In its February 5, 2010 Order,²⁸ the Metropolitan Trial Court denied Eileen’s Motion. It ruled that the following circumstances produced reasonable ground on the part of the NBI agents to believe that Eileen and Codes were committing adultery at the time of their arrest: (1) Wilson’s testimony that the two were caressing and touching each other’s private parts; (2) their reaction of surprise at the time of arrest; and (3) photographs showing their intimate relations.²⁹

Eileen and Codes’s Motion for Reconsideration was denied on March 8, 2010.³⁰

During the arraignment on April 8, 2010, Eileen refused to enter any plea. Instead, she manifested that she would assail before the Regional Trial Court the denial of her Motion to Quash.³¹

Eileen then filed before the Regional Trial Court a Petition for Certiorari and Prohibition.³² She argued that the Metropolitan Trial Court committed grave abuse of discretion in denying her Motion to Quash.³³

On May 4, 2010, the Regional Trial Court held a hearing on Eileen’s petition during which Wilson and Rosales were presented as hostile witnesses.³⁴

In its May 30, 2011 Resolution, the Regional Trial Court found no grave abuse of discretion on the Metropolitan Trial Court’s part. It decreed that the absence of a preliminary investigation did not affect the court’s jurisdiction; nor did it render invalid the Information.³⁵ Nonetheless, it ruled that the inquest investigation was void since Eileen and Codes’s arrest did not fall under Rule 113, Section 5 of the Rules of Court. It noted that an inquest applies only in cases of lawful warrantless arrest. It then ordered the proceedings suspended and the case remanded to the Office of the City Prosecutor for preliminary investigation:³⁶

Wherefore, in light of all the foregoing, let the proceedings in this case be suspended and the records of the instant case be remanded to the Office of the City Prosecutor of Pasig City for preliminary investigation.

SO ORDERED.³⁷

Wilson moved for a clarification/reconsideration³⁸ which the Regional Trial Court denied on March 13, 2012.³⁹ It ruled that Wilson’s admission that he saw the two in the start of a lovemaking activity negates his assertion that they were caught in flagrante delicto.⁴⁰ It decreed that the essence of adultery is the “existence of ‘sexual intercourse[.]” Since Eileen and Codes were not engaged in sexual intercourse, their warrantless arrest was invalid.⁴¹

Dissatisfied with the Decision, Wilson appealed to the Court of Appeals.⁴² He argued, among others, that the Regional Trial Court erred in remanding the case for preliminary investigation. He noted that Eileen and Codes had knowledge of the Information’s filing since September 8, 2009, yet they filed a motion to remand only on September 23, 2009, or more than the required period under the rules.⁴³

The Court of Appeals denied Wilson’s appeal and sustained the Regional Trial Court’s findings.⁴⁴ It ruled that since Eileen’s arrest was illegal, she is entitled to a preliminary investigation prior to the Information’s filing.⁴⁵

It further decreed that Eileen cannot be deemed to have waived her right to a preliminary investigation considering that she had consistently and actively requested for it. Moreover, her refusal to enter a plea during her arraignment contradicts any claim of waiver on Eileen’s part.⁴⁶

Finally, the Court of Appeals gave weight to the June 18, 2010 Department of Justice Resolution which directed that Informations for violation of domicile and arbitrary detention be filed against the NBI agents. The Department of Justice held that the NBI agents had no prior information, except for Wilson’s complaint, to justify a warrantless arrest.⁴⁷

Wilson sought reconsideration of the decision contending that the Court of Appeals erred in giving weight to the Department of Justice’s June 18, 2010 Resolution. He maintained that the Department of Justice reversed itself in its January 23, 2013 Resolution.⁴⁸

In denying Wilson’s motion, the Court of Appeals ruled that the January 23, 2013 Department of Justice Resolution, which was affirmed by the Court of Appeals in CA-G.R. SP No. 129581,⁴⁹ has no decisive bearing in the present case’s adjudication. It noted that CA-G.R. SP No. 129581 involved the issue of “whether there was probable cause for arbitrary detention or delay in the delivery of detained prisoners to the proper judicial authorities against respondents NBI agents.”⁵⁰ Conversely, the case before it tackles the question of whether the Regional Trial Court erred in suspending the proceedings and remanding the case for preliminary investigation.⁵¹

On September 23, 2016, petitioner filed a Petition for Review before this Court.

Petitioner argues that the Court of Appeals erred in holding the warrantless arrest illegal. He claims that the arrest was made in accordance with Rule 113, Section 5 of the Rules of Court. He insists that since private respondent and Codes were found together inside a room,⁵² “more than probable cause exists”⁵³ to establish that they committed the crime of adultery, “is actually committing, or is about to commit the offense”⁵⁴ when petitioner and the NBI agents found them.⁵⁵

Additionally, petitioner maintains that adultery had already been committed and that he and the NBI agents had “probable cause to believe, based on personal knowledge of facts and circumstances surrounding [private respondent and Codes’s] relationship” that the two committed the offense.⁵⁶

Further, petitioner argues that adultery is a crime committed in secrecy and it would be contrary to human experience to require actual sexual intercourse before a valid warrantless arrest may be made.⁵⁷ He avers that adultery may be proven through circumstantial evidence and contends that when “a man is found at a late hour of the night alone in a room with another man’s wife, and absent from her husband’s home without his consent, and as far as she knew without his knowledge, is sufficient to sustain a conviction of adultery.”⁵⁸

Petitioner also maintains that the present case is intimately related to CA-G.R. SP No. 129581 and asserts that both cases involve the same arguments and allegations.⁵⁹

Likewise, he claims that the ruling of the lower court amounts to a decision on the merits considering that a declaration of the warrantless arrest being illegal follows the inadmissibility in court of the evidence obtained through the alleged illegal apprehension.⁶⁰

Finally, he asserts that not only did private respondent waive her right to preliminary investigation, but she also actively participated in the proceedings below and was able to post bail.⁶¹

Private respondent counters that the Court of Appeals correctly sustained the illegality of her arrest.⁶² She claims that the arrest was neither made in flagrante delicto nor in hot pursuit.⁶³ Petitioner and Rosales admitted that she and Codes were fully clothed when the NBI agents implemented the arrest. Even the pictures taken during the apprehension fail to prove that they were committing sexual intercourse.⁶⁴ She also argues that due to the inaccessibility of the condo unit, petitioner and the NBI agents could not have personally witnessed her commit a crime.⁶⁵ Additionally, she notes that petitioner and the NBI agents committed trespassing when they failed to obtain the permission of the building owner or manager.⁶⁶

Private respondent likewise avers that CA-G.R. SP No. 129581 and the present case involve different issues. Certain pieces of evidence introduced in this case were not presented in CA-G.R. SP No. 129581.⁶⁷

Private respondent denies having waived her right to a preliminary investigation and adds that a court’s lack of jurisdiction is a matter which may be raised at any stage of the proceeding.⁶⁸

Additionally, she stresses that the documents attached to the petition have no evidentiary value since these were not identified, authenticated, nor formally offered in evidence before the Regional Trial Court.⁶⁹

Finally, she prays for the petition’s outright denial due to the following procedural defects: (1) failure to attach a clearly legible duplicate original or a certified copy of the judgment;⁷⁰ (2) petitioner’s neglect to submit a verified statement of material dates of receipt of the assailed decision and filing of motion for reconsideration;⁷¹ (3) no proof of service to private respondent’s counsel;⁷² and (4) the petition raises questions of fact.⁷³

Public respondent, through the Office of the Solicitor General, filed its Comment⁷⁴ and maintains that Codes and private respondent’s arrests were valid.⁷⁵ It stresses that contrary to the rulings of the lower courts, probable cause for adultery may be established notwithstanding the absence of proof of actual sexual intercourse.⁷⁶

Petitioner filed a Reply⁷⁷ and a Supplemental Reply.⁷⁸

He emphasizes that while private respondent stated in her Motion to Quash the Information that no inquest proceeding was conducted before the filing of the Information, private respondent argued in her Comment before this Court that the inquest investigation conducted against her was void. He also claims that private respondent and Codes were subjected to an inquest investigation during which they were given the opportunity to be heard, to cross-examine petitioner and his witnesses, as well as to present evidence in their favor.⁷⁹

He reiterates that private respondent waived her right to a preliminary investigation as evidenced by the following: first, her failure to file a Motion for Preliminary Investigation within five days from the Information’s filing; and finally, her belated filing of a Motion for Preliminary Investigation almost a month after the Information has been filed.⁸⁰

He further contends that the case’s remand for preliminary investigation was rendered moot by the finding of probable cause by Prosecutor Maria Benet T. Santos-Madamba (Prosecutor Santos-Madamba), the Metropolitan Trial Court, and the Court of Appeals in its CA-G.R. SP No. 129581 Decision.⁸¹

He restates that the arrest was valid since the NBI operatives had reasonable ground, based on numerous “data and inclinations,”⁸² to believe that private respondent and Codes were committing adultery. He asserts that the arresting officers’ personal knowledge may be based on the information supplied by the victim.⁸³ He claims that when he went up the ceiling, he took a picture/video capture of Codes and private respondent “in bed and caressing each other,”⁸⁴ which he later showed to Rosales. Furthermore, private respondent’s car parked outside the condo building and the moaning sounds they heard of Codes and private respondent constitute personal knowledge to justify a warrantless arrest.⁸⁵

Petitioner likewise notes that private respondent’s active participation in the proceedings before the Metropolitan Trial Court resulted in the court’s acquisition of jurisdiction over her person.⁸⁶

Finally, he contends that he has substantially complied in good faith with all the requirements under the Rules of Court.⁸⁷

Petitioner filed another Reply adopting in full the Comment of the Office of the Solicitor General.⁸⁸

On January 13, 2021, this Court required the parties to move in the premises and ordered them to address the following issues:⁸⁹

First, whether this Court may still take jurisdiction over this case in view of the relationship of the crime charged and the due process clause of the Constitution, specifically, the right to privacy and intimacy of the accused;⁹⁰

Finally, whether this Court may still take jurisdiction over this case in view of Article II, Section 14 requiring “fundamental equality before the law of women and men” and Article III, Section 1 requiring equal protection of the laws in the Constitution.⁹¹

In his Compliance and Motion,⁹² petitioner contends that this Court has jurisdiction over the present case and reiterates that private respondent was validly arrested without a warrant.⁹³ He also avers that private respondent was afforded due process as evidenced by her participation in the proceedings before the lower court. He stresses that private respondent and Codes were given the opportunity to present their respective claims and defenses.⁹⁴

He insists that the continuation of the adultery case does not violate the constitutional provisions requiring fundamental equality before the law of women and men, nor that which requires equal protection of the laws. He avers that private respondent was never discriminated against in the course of the proceedings and was afforded the opportunity to avail of all means and remedies to prove her innocence.⁹⁵

As with petitioner, public respondent claims that this Court can take jurisdiction over the case.⁹⁶ It contends that the constitutional right to privacy does not amount to a license to engage in criminal activity. It avers that in certain instances, the right to privacy of an individual must yield to the government’s right to stop illegal conduct.⁹⁷

Public respondent also contends that since adultery may be proven through circumstantial evidence, a person may be convicted of adultery without his or her right to privacy being violated.⁹⁸

With respect to the constitutional right to equality before the law of men and women, it argues that it is not a self-executing provision which requires the enactment of an enabling law or a statute amending the Revised Penal Code.⁹⁹ Further, assuming that this Court can implement this constitutional provision without an enabling law, public respondent advances the question of whether this Court can invalidate a law when the intent of the legislature is to maintain the nature of adultery as a crime. On this note, it points out that while several bills seeking to amend Articles 333 and 334 are pending before Congress, these bills merely amend the law but do not have the effect of eliminating the crime of adultery.¹⁰⁰

For her part, private respondent submitted a Manifestation¹⁰¹ as well as Compliance and Manifestation.¹⁰²

She claims that this Court cannot take jurisdiction over this case by reason of the strong connection between the relationship of the crime charged and her constitutional rights to privacy, due process, and against unreasonable searches and seizures. She adds that when the NBI agents arrested her without legal basis, they violated not only her right against unreasonable searches and seizures, but also her constitutional right to privacy.¹⁰³ Citing this Court’s ruling in Zulueta v. Court of Appeals,¹⁰⁴ she insists that she has the right to privacy as an individual notwithstanding her marital status.¹⁰⁵

In insisting that this Court cannot take jurisdiction over the case, private respondent invokes Alanis III v. Court of Appeals,¹⁰⁶ wherein we emphasized the constitutional guarantee on the “equality of women and men before the law[.]”¹⁰⁷

Lastly, she reiterates her prayer for the immediate dismissal of the petition “due to its serious procedural infirmities[.]”¹⁰⁸

Based on the pleadings, the issues for this Court’s resolution are:

First, whether the petition should be dismissed outright due to procedural infirmities;

Second, whether private respondent’s warrantless arrest was valid;

Third, whether private respondent waived her right to a preliminary investigation;

Lastly, whether Article 333 of the Revised Penal Code is unconstitutional for violating Article II, Section 14 of the Constitution.

The Petition has no merit.

I

“[O]ne who seeks to avail of the right to appeal must strictly comply with the requirements of the rules[.]”¹⁰⁹ This is based on the notion that appeal is not a matter of right nor a component of due process. It is a mere statutory privilege which may only be exercised in the manner provided by law.¹¹⁰

Rule 45 of the Rules of Court governs the appeal from the Court of Appeals to this Court. Pertinent are the following provisions:

SECTION 3. Docket and other lawful fees; proof of service of petition. — Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition.

SECTION 4. Contents of petition. — The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42.

SECTION 5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Noncompliance “with the requirements regarding proof of service and contents of and the documents which should accompany the petition[,]” shall be a ground for the dismissal of the petition.¹¹¹

In this case, petitioner failed to comply with the requirements under Rule 45. Particularly, he failed to submit the following: (a) proof of service on the Court of Appeals; (b) clearly legible duplicate original or certified true copies of the assailed decision and resolution; (c) verified statement of material dates; and (d) a soft copy of the pleading.¹¹²

Petitioner’s failure to comply with the rules warrants the outright dismissal of his petition.

Nonetheless, petitioner prays that his petition be considered on the ground of substantial justice. He maintains that he has substantially complied in good faith with all the requirements under the rules.¹¹³

Just the same, even if this Court exercises its equity jurisdiction and relaxes the application of the rules in the interest of substantial justice,¹¹⁴ the petition will still be denied. The Court of Appeals correctly sustained the findings of the Regional Trial Court.

II

Our fundamental law guarantees that citizens are safeguarded “against wanton and unreasonable invasion of [their] privacy and liberty as to [their] person, papers and effects.”¹¹⁵ Not only does our Constitution “prevent violations of private security in person and property . . . by officers of the law[,]”¹¹⁶ it also “give[s] remedy against such usurpations when attempted.”¹¹⁷ Article III, Section 2 of the Constitution states:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

This provision provides for the general rule that arrest may only be effected by virtue of a warrant. Nonetheless, the Revised Rules of Criminal Procedure¹¹⁸ recognizes certain exceptions. Rule 113, Section 5, states:

SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.

“A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one ‘in flagrante delicto,’ while that under Section 5(b) has been described as a ‘hot pursuit’ arrest.”¹¹⁹ Macad v. People¹²⁰ differentiated these two instances of warrantless arrest:

In warrantless arrests made pursuant to Section 5(a), Rule 113, two (2) elements must concur, namely: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer. On the other hand, Section 5(b), Rule 113 requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the accused had committed it.

In both instances, the officer’s personal knowledge of the fact of the commission of an offense is essential. Under Section 5(a), Rule 113 of the Revised Rules of Criminal Procedure, the officer himself witnesses the crime; while in Section 5(b) of the same, he knows for a fact that a crime has just been committed.¹²¹ (Citations omitted)

In a separate concurring opinion, it was further discussed:

Rule 113, Section 5(a) of the Rules of Court only allows warrantless arrests for crimes in flagrante when the police officer or private citizen conducting the arrest has, within his or her purview, all the elements of the offense being committed by the accused. This provision cannot validly be invoked where a police officer only possesses information that the accused has committed a crime.

On the other hand, Section 5(b) of the same rule requires that the arresting police officer has perceived, through his or her own senses, that a crime has just been committed and, in addition to this perception, also has perceived facts which could reasonably lead to the belief that the person about to be arrested was the offender. In this case, the police officer did not witness the occurrence of the crime itself but witnessed some facts that led him to believe that the person about to be arrested committed the offense.¹²²

The facts and circumstances surrounding the arrest do not show that private respondent and Codes were caught in flagrante delicto.

At the outset, we find that no overt act was done in the presence of the arresting officers establishing that private respondent and Codes have just committed, are actually committing, or are attempting to commit adultery. To recall, private respondent and Codes were inside a room prior to their apprehension. Petitioner narrated that it was only after he confirmed that private respondent and Codes were inside the room that he led the NBI agents inside the room where they allegedly caught the two “lying in bed caressing and embracing each other’s body in a very compromising position[.]”¹²³

The importance of an overt act executed “in the presence or within the view of the arresting officer”¹²⁴ was emphasized in Antiquera v. People.¹²⁵ The case involved the warrantless arrest of George Antiquera (Antiquera) and his live-in partner during an alleged pot session. The police officers peeked through the partially opened door of a house and saw the two sitting in the living room. The two were found to be holding an improvised tooter, pink lighter, aluminum foil, and an improvised burner, prompting the police officers to enter the house and arrest the two.¹²⁶ In ruling that there was no in flagrante delicto arrest, this Court held:

2. Admittedly, the police officers did not notice anything amiss going on in the house from the street where they stood. Indeed, even as they peeked through its partially opened door, they saw no activity that warranted their entering it. Thus, PO1 Cabutihan testified:

THE COURT:

Q By the way, Mr. Cabutihan, when you followed your companion towards the open door, how was the door open? Was it totally open, or was it partially open?
A It was partially open Your Honor.

. . . .

Q So how were you able to know, to see the interior of the house if the door was only open by 6 inches? Or did you have to push the door?
A We pushed the door, Your Honor.

. . . .

Q Were you allowed to just go towards the door of the house, push its door and peeped inside it, as a police officer?
A Kasi po naghinala po kami baka may…

Q Are you not allowed to — Are you not required to get a search warrant before you can search the interior of the house?
A Yes, Your Honor.

Q What do you mean by yes? Would you first obtain a search warrant before searching the interior of the house?
A Yes, Your Honor.

Q So why did you not a [sic] secure a search warrant first before you tried to investigate the house, considering your admission that you suspected that there was something wrong inside the house?
A Because we saw them that they were engaged in pot session, Your Honor.

Q But before you saw them, you just had to push the door wide open to peep through its opening because you did not know what was happening inside?
A Yes, Your Honor.

Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of accused Antiquera without warrant under the above-mentioned rule.¹²⁷ (Emphasis in the original)

Similarly, in Antiquera, the arresting officers in this case witnessed no overt act that would have prompted them to enter the condo unit. Prior to them entering the unit, the police officers were unaware of what was happening inside considering that the door was closed.

Further, this Court notes that when petitioner and Rosales were presented as hostile witnesses before the Regional Trial Court¹²⁸ they admitted that when they entered the condo unit and implemented the arrest, private respondent and Codes were fully clothed. Even the pictures taken during the arrest did not show that private respondent and Codes were in the act of committing, or about to commit, or had just committed adultery:¹²⁹

Testimony of petitioner

Atty. Butuyan: Now, when you opened the door Mr. Witness, Eileen and the other man were fully cloth [sic] they have pants and shirts, correct?

A: Yes xxx.

. . . .

Atty. Butuyan: We just wanted to show that none of the pictures show that the petitioner was caressing or even the kissing the respondent, Your Honor. These are material in this case.

Court: Can you stipulate?

Atty. Martin Samson: We stipulate Your Honor that the pictures do not show that.

Atty. Butuyan: So, for the record, the respondent has stipulated Your Honor that none of the pictures show that there was caressing, there was no sexual intercourse Your Honor. The respondent stipulated that there was no kissing in the pictures Your Honor.

Atty. Martin Samson: We stipulate Your Honor.¹³⁰

Testimony of Rosales

Q: Now, the pictures that you took Mr. witness they did not show the two persons inside in the act of committing sexual intercourse correct?
A: Yes, Sir.

. . . .

Q: They were dressed with pants and shirts?
A: Yes, sir.¹³¹

Based on the foregoing, this Court finds that the prosecution failed to establish all the requisites for an in flagrante delicto arrest. No “overt act constituting the crime [was] done in the presence or within the view of the arresting officer[s].”¹³²

II (A)

Neither can their apprehension be considered as a hot pursuit arrest.

To reiterate, a hot pursuit arrest requires the presence of the following elements: “first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.”¹³³

Whether the warrantless arrest is considered in flagrante delicto or one in hot pursuit, the person making the arrest must have “personal knowledge of the fact of the commission of an offense[.]”¹³⁴ The difference between the two is that in case of “in flagrante delicto arrests, the arresting officer must have personally witnessed the commission of the crime[,]”¹³⁵ while in a hot pursuit arrest, the commission of the crime need not be personally witnessed by the apprehending officer.

In this case, private respondent and Codes were arrested by reason of the information given by petitioner. He purportedly saw them “caressing, embracing and touching each other’s private parts[.]”¹³⁶ He allegedly witnessed them in the start of a lovemaking activity. According to him, “[b]y the time the NBI operatives arrive, the act would have been consummated.”¹³⁷

It must be stressed, however, that for a hot pursuit arrest to be valid, the commission of a crime must be undisputed. As this Court explained in Calleja v. Medialdea:¹³⁸

On the other hand, the application of Section 5(b) requires two elements: first, that at the time of the arrest, a crime or an offense had in fact just been committed; and second, the arresting officer has probable cause to believe, based on his or her personal knowledge of facts or circumstances, that the person to be arrested had committed the crime or offense. For this mode of warrantless arrest, the Court has emphasized that it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime — a crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition, and it is not enough to suspect that a crime may have been committed.¹³⁹ (Citations omitted)

Petitioner’s assertion that the crime of adultery would have been committed by the time the NBI operatives arrive is insufficient to meet the requirement of the rules. The ruling in People v. Villareal¹⁴⁰ elucidates on this matter:

Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule 113 have been complied with, i.e., that an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it. The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a crime had been indisputably committed by the appellant. *It is not enough that PO3 de Leon had reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been committed first, which does not obtain in this case.*¹⁴¹ (Emphasis supplied)

The illegality of the warrantless arrest having been established, this Court shall determine whether private respondent has waived her right to a preliminary investigation.

III

Preliminary investigation is defined as “an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.”¹⁴²

Under the Rules of Court, preliminary investigation need be conducted prior to the information’s filing, if the offense is punishable by “at least four (4) years, two (2) months and one (1) day without regard to the fine.”¹⁴³ The right to a preliminary investigation is not constitutional, but merely statutory in character. All the same, it is a substantive right and a component of due process.¹⁴⁴ As explained in Go v. Court of Appeals:¹⁴⁵

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner’s claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.¹⁴⁶ (Citation omitted)

Preliminary investigation shall not be necessary if the accused was lawfully arrested without a warrant. In cases of valid warrantless arrest, the person arrested shall be subjected to inquest proceeding:¹⁴⁷

SECTION 6. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.¹⁴⁸

Rule 112, Section 6 of the Rules of Court applies only in cases of valid warrantless arrest. The rule was stressed in San Agustin v. People.¹⁴⁹ In that case, this Court found the inquest conducted against petitioner void. It decreed that having been unlawfully arrested without a warrant, petitioner is entitled to a preliminary investigation. It noted that “an inquest investigation is proper only when the suspect is lawfully arrested without a warrant.”¹⁵⁰ However, this Court clarified:

[T]hat the absence of a preliminary investigation does not affect the jurisdiction of the trial court but merely the regularity of the proceedings. It does not impair the validity of the Information or otherwise render it defective. Neither is it a ground to quash the Information or nullify the order of arrest issued against him or justify the release of the accused from detention. However, the trial court should suspend proceedings and order a preliminary investigation considering that the inquest investigation conducted by the State Prosecutor is null and void.¹⁵¹ (Citations omitted)

Here, considering that private respondent’s warrantless arrest was invalid, the Regional Trial Court correctly ordered the remand of the case for preliminary investigation.

Finally, this Court agrees with the Court of Appeals that CA-G.R. SP No. 129581 has no decisive bearing in the resolution of this case.

The issue in CA-G.R. SP No. 129581 was whether the Secretary of Justice committed grave abuse of discretion in ruling that the NBI agents did not commit arbitrary detention. The Court of Appeals upheld the findings of the Secretary of Justice and decreed that private respondent and Codes’s arrest were valid.¹⁵² However, as correctly argued by private respondent, certain pieces of evidence presented in the present case were not submitted and considered in CA-G.R. SP No. 129581. The testimonies of petitioner and Rosales during the May 4, 2010 hearing were not considered in CA-G.R. SP No. 129581.¹⁵³

IV

Having resolved the first three issues, we need not discuss the question regarding the constitutionality of Article 333 of the Revised Penal Code. In Parcon-Song v. Parcon,¹⁵⁴ this Court stressed that when a case involves a constitutional question, the issue of constitutionality shall only be discussed when it has been properly raised and presented by the parties and its resolution is necessary in the conclusion of the case:¹⁵⁵

Before this Court may determine the constitutionality of a government act, the requisites for judicial review must be satisfied. In In Re: Save the Supreme Court Judicial Independence and Fiscal Autonomy Movement:

The power of judicial review, like all powers granted by the Constitution, is subject to certain limitations. Petitioner must comply with all the requisites for judicial review before this court may take cognizance of the case. The requisites are:

(1) there must be an actual case or controversy calling for the exercise of judicial power;

(2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;

(3) the question of constitutionality must be raised at the earliest opportunity; and

(4) the issue of constitutionality must be the very lis mota of the case[.]

The fourth requisite is relevant here. Courts are obligated to presume that the acts of Congress are valid, unless the contrary is clearly shown. Thus, courts avoid resolving the constitutionality of a law if the case can be ruled on other grounds. The question of constitutionality will only be passed upon if it is indispensable to the resolution of the case, but it cannot be raised collaterally. This Court ruled:

Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the actions cognizable by courts of justice, not necessarily in a suit for declaratory relief. . . . The constitutional issue, however, (a) must be properly raised and presented in the case, and (b) its resolution is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota presented.¹⁵⁶ (Citations omitted)

Notably, since the resolution of the constitutional question is not necessary in the final determination of the case, this Court may no longer resolve the fourth or final issue.

All the same, this Court notes that it may be time to reexamine the continued imposition of criminal liability for adultery.

IV (A)

The constitutional right of every individual to “fundamental equality before the law of women and men,”¹⁵⁷ various statutory enactments, and our international commitments, render doubtful the constitutionality of adultery as a crime.

To be sure, the Philippines is a state party to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The Philippines signed the convention on July 15, 1980 and ratified it on August 5, 1981.¹⁵⁸

CEDAW “mandates that State parties shall accord to women equality with men before the law and shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations on the basis of equality of men and women.”¹⁵⁹ The convention provides for the definition of “discrimination against women.” Article 1 states:

For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

As a state party to CEDAW, the Philippines undertook “to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”¹⁶⁰ and “[t]o repeal all national penal provisions which constitute discrimination against women.”¹⁶¹

Article II, Section 14 of the 1987 Constitution has codified the State’s commitment to gender equality:

SECTION 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

This constitutional provision expresses the State’s proactive stance in ensuring gender equality.¹⁶² As compared to the equal protection clause under the Bill of Rights, Article II, Section 14 is couched in a more proactive form which “requires the State to actively engage and promote gender equality[.]”¹⁶³ Alanis III teaches:

Section 14 of the Constitution requires that the State be active in ensuring gender equality. This provision is even more noticeably proactive than the more widely invoked equal protection and due process clauses under the Bill of Rights. In Racho v. Tanaka, this Court observed:

This constitutional provision provides a more active application than the passive orientation of Article III, Section 1 of the Constitution does, which simply states that no person shall “be denied the equal protection of the laws.” Equal protection, within the context of Article III, Section 1 only provides that any legal burden or benefit that is given to men must also be given to women. It does not require the State to actively pursue “affirmative ways and means to battle the patriarchy—that complex of political, cultural, and economic actors that ensure women’s disempowerment.”¹⁶⁴ (Citations omitted)

Similarly in Saudi Arabian Airlines v. Rebesencio:¹⁶⁵

Article II, Section 14 of the 1987 Constitution provides that “[t]he State . . . shall ensure the fundamental equality before the law of women and men.” Contrasted with Article III, Section 1 of the 1987 Constitution’s statement that “[n]o person shall . . . be denied the equal protection of the laws,” Article II, Section 14 exhorts the State to “ensure.” This does not only mean that the Philippines shall not countenance nor lend legal recognition and approbation to measures that discriminate on the basis of one’s being male or female. It imposes an obligation to actively engage in securing the fundamental equality of men and women.¹⁶⁶

Consistent with the State’s obligation under the 1987 Constitution, and its commitments under CEDAW, the legislature enacted Republic Act No. 9710.¹⁶⁷ Also known as the Magna Carta for Women, Republic Act No. 9710 acknowledges that equality of men and women “entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality.”¹⁶⁸ On this note, the law provides that “[t]he State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women[.]”¹⁶⁹

The constitutional duty to “ensure the fundamental equality of women and men before the law”¹⁷⁰ belongs not only to the Legislature but also to the Judiciary. In line with this, courts, in resolving cases, must ensure that their decisions do not have the effect of discriminating a party by reason of their gender.¹⁷¹

In Saudi Arabian Airlines, this Court considered to be discriminatory the policy of petitioner which rendered void the employment contract of a flight attendant who becomes pregnant during the term of her employment. The Court emphasized that since “pregnancy is an occurrence that pertains specifically to women[,]”¹⁷² the “policy excludes from and restricts employment on the basis of no other consideration but sex.”¹⁷³

Similarly, *Halaguena v. Philippine Airlines, Inc.*¹⁷⁴ reaffirmed the duty of the State, including the Judiciary, to ensure that practices perpetuating discrimination based on sex are eliminated. In this case, the Court nullified the provision in the parties’ Collective Bargaining Agreement (CBA) “providing for the compulsory retirement of female cabin attendants at 55 years old and male cabin attendants at 60 years old[,]”¹⁷⁵ noting that there was no reasonable basis for the distinction in the retirement age.¹⁷⁶ It stressed that the provision is discriminatory to the female cabin attendants and is “patently contrary to the Constitution, laws, international conventions, and even their CBA itself[.]”¹⁷⁷

Nonetheless, our duty to ensure gender equality notwithstanding, this Court “is bound by the doctrine of separation of powers[.]”¹⁷⁸ As previously discussed, we cannot nullify or cause the invalidation of the legislature’s act when its constitutionality is not the lis mota of the case.

In a proper case, where all the requisites for judicial review are present, this Court will not shy away from its duty in determining whether a statute violates certain provisions of the Constitution.

IV (B)

The Revised Penal Code which defines and penalizes the crime of adultery, is an enactment approved as early as 1930. It is “based on the Spanish Penal Code of 1870 which, in turn, is based on the French Penal Code of 1810.”¹⁷⁹

Notably, the 1870 Spanish Penal Code has undergone numerous reforms and amendments.¹⁸⁰ In 1978, Spain passed a law¹⁸¹ repealing Articles 449 to 452 of the country’s then Penal Code. By repealing these provisions, Spain, in effect, decriminalized the crimes of adultery and concubinage.¹⁸²

As with Spain, our penal laws, as well as jurisprudence, have likewise undergone several reforms.

U.S. v. Mata¹⁸³ discussed the justification for the crime of adultery:

The gist of the crime of adultery under the Spanish law, as under the common law in force in England and the United States in the absence of statutory enactments, is the danger of introducing spurious heirs into the family, whereby the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. And since, under Spanish law, legitimate heirs may be begotten of a bigamous marriage, the danger of the introduction of spurious heirs is not less real as a result of the infidelity of the wife of a bigamous marriage than it is in the case of a lawful wife; logically, therefore, the incontinence of the wife of a bigamous marriage, as long as the bigamous relations exist, was deemed by the Spanish legislator to constitute the crime of adultery, and penalized in like manner as is the marital faithlessness of a lawful wife.¹⁸⁴

Mata is a case promulgated in 1911. The circumstances and environment more than 100 years ago differ from the present-day situation. The compelling state interest which impelled outlawing adultery may no longer exist. It must be emphasized that with the advent of technology, new ways of determining paternity and filiation have emerged.

In Aquino v. Aquino,¹⁸⁵ this Court recognized the effectivity of “DNA testing [as] a valid means of determining paternity and filiation[,]”¹⁸⁶ thus:

Moreover, DNA testing is a valid means of determining paternity and filiation. Under the Rule on DNA Evidence, among the purposes of DNA testing is to determine whether two or more distinct biological samples originate from related persons, known as kinship analysis. The Rule on DNA Evidence permits the use of any biological sample, including bones, in DNA testing. This Court has sanctioned the exhumation of bodies for DNA testing[.]

Likewise, while the Rule on DNA Evidence refers specifically to DNA testing as probability of parentage involving a putative father, it does not prohibit the use of kinship analysis through DNA testing of other genetically related persons, when there is prima facie evidence or reasonable possibility of genetic kinship. Thus, in the absence of viable biological samples of the putative father, DNA testing may be used as corroborative evidence of two or more persons’ exclusion or inclusion in the same genetic lineage, subject to scientific analysis of the likelihood of relatedness of those persons based on the results of the tests. This is in keeping with the liberalization of the rule on investigation of the paternity and filiation of children, in the paramount consideration of the child’s welfare and best interest of the child.¹⁸⁷ (Citations omitted)

In 2004, Congress enacted Republic Act No. 9262 or the Anti-Violence Against Women and their Children Act of 2004. Regarded as “a landmark legislation”¹⁸⁸ the law is considered “a major step forward towards achieving the goal of eliminating all forms of violence against women[.]”¹⁸⁹

The law is a recognition of “the unequal power relationship between men and women, and the widespread gender bias and prejudice against women[.]”¹⁹⁰

On this note, the law penalizes various forms of violence against women including, but not limited to, physical violence or psychological violence.¹⁹¹ Section 5(i) of the law states:

SECTION 5. Acts of Violence Against Women and Their Children. — The crime of violence against women and their children is committed through any of the following acts:

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman’s child/children.

In the recent case of XXX v. People,¹⁹² this Court, applying this provision, sustained the conviction of petitioner after it found that his infidelity caused “mental and emotional anguish upon his wife[.]”¹⁹³

In ruling this, the Court explained:

An illicit sexual encounter committed by a male person, however casual or infrequent, constitutes marital infidelity that is tantamount to psychological violence punishable by the provisions of Republic Act No. 9262. This is easily apparent from Sec. 3(c) of the law which defines psychological violence, to wit:

C. “Psychological violence” refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.¹⁹⁴

Based on this ruling, a person who commits marital infidelity, may be prosecuted under Republic Act No. 9262.

Yet, observations have been made concerning the definition of marital infidelity. In a separate opinion in XXX v. People,¹⁹⁵ it was noted that it is unclear, if marital infidelity in and of itself, as presently worded in the law, is considered a crime under Republic Act No. 9262,¹⁹⁶ thus:

A reading of Section 5(i) will reveal that it does not include “marital infidelity” as an example of “causing mental or emotional anguish, public ridicule or humiliation to the woman or her child.” While it is true that the enumeration of the modes of committing a violation of Section 5(i) is not exclusive, with the use of the words “including, but not limited to”; and that Section 3(a)(C) of the same law mentions “marital infidelity” in defining “psychological violence,” still, it is Section 5(i), not Section 3(a)(C) that enumerates the acts explicitly considered as crimes under Republic Act No. 9262. Therefore, it is not even clear if marital infidelity, in and of itself, is a crime under Republic Act No. 9262. My position is that it cannot be so.

First, the Revised Penal Code already clearly defines the crimes of adultery and concubinage. Both crimes involve sexual intercourse. In contrast, the law is devoid of any explanation as to what constitutes marital infidelity. The Legislative cannot be assumed to have enacted a law that punishes the exact same crime. Thus, marital infidelity must mean something beyond adultery, concubinage, or sexual intercourse.

Marital infidelity may mean different things. It implies more than just a sexual act. It can be going out on a date with a former lover. It can be visiting so-called massage parlors or gentlemen’s clubs. It can be receiving lap dances. It can even be watching pornography. It can also be the spouse carrying out a relationship with another of their same sex. These acts may elicit different reactions depending on who you ask. Some might say these constitute infidelity. Some may say that it is infidelity only if an emotional attachment is formed. Others might say it is infidelity only when it becomes habitual. Others may tolerate if the other spouse becomes intimate with one of their similar sex. Still, others might react entirely differently or with a permutation of the foregoing.

Marital infidelity was not defined in the law as strictly being sexual. Even if we read it to mean sexual, what is sexual can include a whole spectrum, from sharing intimate glances to intercourse.

Second, marital infidelity is ultimately a question of boundaries—boundaries that ought to be set between each couple. Couples should first agree on what constitutes marital infidelity for them. This is a conversation in which the State and its prosecutors take no part. However, openly negotiating these decisions are not common in our culture or laws. More often, they are discussed only when one spouse’s idea of fidelity is breached. At that point, emotions are running high. With the addition of criminalizing mere marital infidelity, peaceful resolutions seem improbable. With the interpretation of the majority, the State and its prosecutors are invited into the most intimate corners of a marriage.

Third, marital infidelity in the law is vague because there may be many reasons for its commission. Without recognizing the following as licenses for infidelity, we acknowledge that they are possible causes. Marital infidelity may indeed be committed to hurt the other spouse without necessarily constituting psychological coercion. It can happen at a time of weakness. For instance, research shows that husbands who earn less than their wives are more prone to straying from the marital relationship, the reason being that they need to prove their masculinity in ways other than providing financial support to the family. While being outearned by one’s wife is definitely not an excuse to cheat, the research nevertheless shows that marital infidelity may be committed for reasons other than causing mental and emotional anguish on the wife. In the case of the outearned husband, he may stray to fill a gaping hole in his perceived identity.

Marital infidelity may be prompted by loneliness, as with the case of a couple where one spouse is an overseas Filipino worker. One might commit marital infidelity to address a perceived gap in the relationship. Nobody possesses all the qualities that the other desires. Lack of communication might lead one spouse to seek from another person a characteristic missing from the other spouse. Even if marital infidelity was committed to hurt the other spouse, it may be a way of communicating needs. Marital infidelity may be an indication that emotions are fading, or that the relationship should be extinguished, or one is simply not built for monogamy.

The vague definition of marital infidelity is more cruel in light of the absence of divorce in our legal system. Tan-Andal v. Andal may offer some relief, but this option is still lengthy, difficult, and inaccessible to many. Unhappy spouses imprisoned in marriages now become vulnerable to criminal complaints. To reiterate, I do not seek to justify the causes of marital infidelity but to demonstrate that there may be many motivations behind it. We draw a hard line between these and domestic violence.

The constitutionality of the provision on marital infidelity is suspect due its vagueness, but this matter was not raised here. Still, the Court must refrain from interpreting the law in such a way as to make it unconstitutional.¹⁹⁷ (Citations omitted)

Be that as it may, this Court acknowledges that our laws have made significant progress. With the enactment of Republic Act No. 9262, the legislature has provided women an additional and simpler avenue to enable them to protect their rights in cases marital infidelity is committed against them.

IV (C)

With the inclusion of marital infidelity in the definition of psychological violence, Republic Act No. 9262, had in effect, rectified the apparent inequality in the Revised Penal Code provisions on adultery and concubinage.

To be sure, Articles 333 and 334 of the Revised Penal Code define and penalize adultery and concubinage. They read:

Article 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.

Article 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

Adultery and concubinage are characterized as crimes against chastity. While both are considered as marital infidelity, there is a level of inequality with respect to the evidence required to establish these crimes.¹⁹⁸

In People v. Zapata¹⁹⁹ this Court characterized adultery as an instantaneous crime deemed consummated “at the moment of . . . carnal union.”²⁰⁰ Proof of “sexual intercourse with a man not her husband”²⁰¹ renders the wife guilty of adultery.

Meanwhile, concubinage, as defined under article 334 may be committed in three (3) ways: “(1) by keeping a mistress in the conjugal dwelling; (2) by having sexual intercourse, under scandalous circumstances, with a woman who is not his wife; and (3) by cohabiting with such woman in any other place.”²⁰²

Unlike in adultery, where the wife and her paramour may be prosecuted for the crime for “as many times as there were carnal acts consummated[,]”²⁰³ in concubinage, the offending husband’s sexual intercourse with another does not constitute a distinct and separate crime for which he may be held criminally liable.²⁰⁴

In addition, while the crime of concubinage is more difficult to prove, it carries a lighter penalty for the offending parties. Under the Revised Penal Code, the offending husband who committed concubinage “shall be punished by prision correccional in its minimum and medium periods[,]”²⁰⁵ while his concubine shall suffer the penalty of destierro.²⁰⁶

On the other hand, the wife and her paramour who are found guilty of adultery shall both suffer “prision correccional in its medium and maximum periods.”²⁰⁷

The reforms introduced by Republic Act No. 9262 and jurisprudence, notwithstanding, we are yet to realize gender equality in law. The present state of laws continues to perpetuate discrimination particularly against women.

In such a situation where we find an apparent inequality or injustice in our penal laws but is constrained to apply its provisions,²⁰⁸ this Court may refer the matter to Congress and to the President of the Republic of the Philippines through the Department of Justice pursuant to Article 5 of the Revised Penal Code.²⁰⁹

Taking into consideration these observations, and applying Article 5 of the Revised Penal Code, we deem this as “an opportune moment to signal to the Legislature the incongruity between our domestic law and our international obligation to eliminate the discrimination against women[.]”²¹⁰

V

We are not unmindful of the effects of marital infidelity to the members of a family. However, when certain statutes have the effect of discriminating individuals on the basis of biological sex and gender identity, this Court should not refrain from subjecting its provisions to heightened judicial scrutiny.²¹¹ The responsibility of ensuring “the fundamental equality of women and men before the law”²¹² is a constitutional mandate imposed not only on the Legislature, but also on the Judiciary.

On a final note, issues concerning the sexual relations between consenting adults are, at its core, private matters between them.²¹³ Couples should be permitted to determine and shape the complexities of their respective relationship:²¹⁴

Infidelity is already painful. We should not add to the pain by feeding into the meaningless desire for revenge by incarcerating the human offender. Those in intimate relationships regardless of legal status should be given as much freedom to resolve their differences and to find ways forward. If not, the couple and their family should be given the kindness, by our laws, to have their marriage declared void, to divorce, and permanently separate.

Laws should not impose the morality of those belonging to a dominant belief. To do so is plainly unethical. To do so is to encourage a simplistic view of what it is to relate intimately with another individual. To do so is also plainly unjust.

Love is complex. It is unique to individuals in love. The State—in whatever incarnation of any law—will never be able to fully imagine or understand what it means for two unique individuals to survive love or to let go. How to love and how to un-love are both first freedoms that should be protected against the intervention of the state. We continually discover ourselves as we go through all that is there in our intimate relationships.

Infidelity should trigger accountability. Infidelity is an occasion for the one who betrays to introspect. Infidelity provides the couple precious moments to reevaluate the complexity of themselves in a relationship.²¹⁵

ACCORDINGLY, the Petition is DENIED. The June 29, 2015 Decision and July 26, 2016 Resolution of the Court of Appeals in CA-G.R. SP No. 124844 are AFFIRMED.

Pursuant to Article 5 of the Revised Penal Code, let a copy of this Decision be furnished the President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of Representatives for their proper disposition.

SO ORDERED.

Footnotes

¹ Macad v. People, 838 Phil. 102, 119 (2018) [Per J. Gesmundo, Third Division].

² Rollo, pp. 10–33.

³ Id. at 38–50. The June 29, 2015 Decision in CA-G.R. SP No. 124844 was penned by Associate Justice Myra V. Garcia-Fernandez and concurred in by Associate Justices Noel G. Tijam and Mario V. Lopez of the Fourth Division, Court of Appeals, Manila.

⁴ Id. at 52–54. The July 26, 2016 Resolution in CA-G.R. SP No. 124844 was penned by Associate Justice Myra V. Garcia-Fernandez and concurred in by Associate Justices Noel G. Tijam and Mario V. Lopez of the Former Fourth Division, Court of Appeals, Manila.

⁵ Id. at 56–59. The Resolution in SCA No. 3449 was penned by Presiding Judge Amorfina Cerrado-Cezar of Branch 67, Regional Trial Court, Pasig City.

⁶ Id. at 61–64. The Resolution in SCA No. 3449 was penned by Presiding Judge Amorfina Cerrado-Cezar of Branch 67, Regional Trial Court, Pasig City.

⁷ Id. at 59.

⁸ Id. at 39.

⁹ Also referred to as Philippe Bernabe Codes in some parts of the rollo.

¹⁰ Rollo, p. 13.

¹¹ Id. at 39.

¹² Id. at 13.

¹³ Id.

¹⁴ Id. at 39.

¹⁵ Id. at 15–16.

¹⁶ Id. at 16, 39.

¹⁷ Id. at 453.

¹⁸ Id. at 16.

¹⁹ Id. at 39–40.

²⁰ Id. at 16.

²¹ Id. at 40.

²² Id. at 17.

²³ Id. at 89–90.

²⁴ Id. at 89.

²⁵ Id. at 40.

²⁶ Id. at 196–215.

²⁷ Id. at 91.

²⁸ Id. at 91–93. The Order was penned by Presiding Judge Marina Gaerlan-Mejorada of Branch 70, Metropolitan Trial Court, Pasig City.

²⁹ Id. at 93.

³⁰ Id. at 94. The Order was penned by Presiding Judge Marina Gaerlan-Mejorada of Branch 70, Metropolitan Trial Court, Pasig City.

³¹ Id. at 41.

³² Id. at 240–277.

³³ Id. at 254.

³⁴ Id. at 41.

³⁵ Id. at 57.

³⁶ Id. at 58–59.

³⁷ Id. at 59.

³⁸ Id. at 61.

³⁹ Id. at 61–64.

⁴⁰ Id. at 63.

⁴¹ Id. at 63–64.

⁴² Id. at 43.

⁴³ Id. at 44–45.

⁴⁴ Id. at 45–48.

⁴⁵ Id. at 49.

⁴⁶ Id.

⁴⁷ Id. at 47–48.

⁴⁸ Id. at 52–53.

⁴⁹ Id. at 99–108. The Decision dated July 28, 2015 was penned by Associate Justice Francisco P. Acosta and concurred in by Associate Justices Noel G. Tijam and Eduardo B. Peralta, Jr. of the Fourth Division, Court of Appeals, Manila.

⁵⁰ Id. at 53.

⁵¹ Id.

⁵² Id. at 25–26.

⁵³ Id. at 26.

⁵⁴ Id.

⁵⁵ Id. at 25–26.

⁵⁶ Id. at 26.

⁵⁷ Id. at 24–25.

⁵⁸ Id. at 27. Citing U.S. v. Legaspi, 14 Phil. 38 (1909) [Per J. Carson, First Division].

⁵⁹ Rollo, p. 27.

⁶⁰ Id. at 29.

⁶¹ Id. at 30.

⁶² Id. at 146.

⁶³ Id. at 155–158.

⁶⁴ Id. at 146–149.

⁶⁵ Id. at 151–152.

⁶⁶ Id. at 159–162.

⁶⁷ Id. at 163–167.

⁶⁸ Id. at 169–170.

⁶⁹ Id. at 173–174.

⁷⁰ Id. at 174–175.

⁷¹ Id. at 177–178.

⁷² Id. at 178–179.

⁷³ Id. at 180–182.

⁷⁴ Id. at 452–469.

⁷⁵ Id. at 456–462.

⁷⁶ Id. at 463–466.

⁷⁷ Id. at 397–415.

⁷⁸ Id. at 373–396.

⁷⁹ Id. at 374–375.

⁸⁰ Id. at 376–377.

⁸¹ Id. at 376, 379–381.

⁸² Id. at 382.

⁸³ Id. at 382–383.

⁸⁴ Id. at 401.

⁸⁵ Id. at 401–402.

⁸⁶ Id. at 384.

⁸⁷ Id. at 391.

⁸⁸ Id. at 493–496.

⁸⁹ Id. at 512–513.

⁹⁰ Id. at 512.

⁹¹ Id.

⁹² Id. at 605–616.

⁹³ Id. at 606–608.

⁹⁴ Id. at 609–610.

⁹⁵ Id. at 612–613.

⁹⁶ Id. at 583–600.

⁹⁷ Id. at 597–600.

⁹⁸ Id. at 599.

⁹⁹ Id. at 583–593.

¹⁰⁰ Id. at 590–597.

¹⁰¹ Id. at 514–522.

¹⁰² Id. at 523–549.

¹⁰³ Id. at 515.

¹⁰⁴ 324 Phil. 63 (1996) [Per J. Mendoza, Second Division].

¹⁰⁵ Rollo, p. 515.

¹⁰⁶ 890 Phil. 74 (2020) [Per J. Leonen, Third Division].

¹⁰⁷ Id. at 87.

¹⁰⁸ Rollo, p. 516.

¹⁰⁹ Heirs of Gaudiano v. Benemerito, 545 Phil. 311, 320 (2007) [Per J. Ynares-Santiago, Third Division], citing David v. Mijares, G.R. No. 158717, March 3, 2004.

¹¹⁰ Id.

¹¹¹ RULES OF COURT, Rule 56, sec. 5(d) states:

SECTION 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:

(d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition[.]

¹¹² Rollo, p. 110.

¹¹³ Id. at 412–413.

¹¹⁴ Durban Apartments Corp. v. Catacutan, 514 Phil. 187, 195 (2005) [Per J. Ynares-Santiago, First Division].

¹¹⁵ 20th Century Fox Film Corp. v. Court of Appeals, 247 Phil. 624, 629 (1988) [Per J. Gutierrez, Jr., Third Division].

¹¹⁶ Nala v. Barroso, Jr., 455 Phil. 999, 1007 (2003) [Per J. Ynares-Santiago, First Division].

¹¹⁷ Id.

¹¹⁸ A.M. No. 00-5-03-SC, December 1, 2000.

¹¹⁹ Malacat v. Court of Appeals, 347 Phil. 462, 479 (1997) [Per J. Davide, Jr., En Banc].

¹²⁰ 838 Phil. 102 (2018) [Per J. Gesmundo, Third Division].

¹²¹ Id. at 119.

¹²² J. Leonen, Concurring Opinion in Macad v. People, 838 Phil. 102, 136–137 (2018) [Per J. Gesmundo, Third Division].

¹²³ Rollo, p. 16.

¹²⁴ Antiquera v. People, 723 Phil. 425, 430 (2013) [Per J. Abad, Third Division], citing Zalameda v. People, 614 Phil. 710 (2009) [Per J. Brion, Second Division].

¹²⁵ 723 Phil. 425 (2013) [Per J. Abad, Third Division].

¹²⁶ Id. at 427.

¹²⁷ Id. at 430–432.

¹²⁸ Rollo, p. 56.

¹²⁹ Id. at 146–149.

¹³⁰ Id. at 147–148.

¹³¹ Id. at 148.

¹³² Antiquera v. People, 723 Phil. 425, 430 (2013) [Per J. Abad, Third Division], citing Zalameda v. People, 614 Phil. 710 (2009) [Per J. Brion, Second Division].

¹³³ Pestilos v. Generoso, 746 Phil. 301, 321 (2014) [Per J. Brion, Second Division].

¹³⁴ People v. Villareal, 706 Phil. 511, 518 (2013) [Per J. Perlas-Bernabe, Second Division].

¹³⁵ People v. Rangaig, 901 Phil. 390, 405 (2021) [Per J. Leonen, Third Division], citing Manibog v. People, 850 Phil. 103 (2019) [Per J. Leonen, Third Division].

¹³⁶ Rollo, p. 92.

¹³⁷ Id.

¹³⁸ 918-B Phil. 1 (2021) [Per J. Carandang, En Banc].

¹³⁹ Id. at 234.

¹⁴⁰ 706 Phil. 511 (2013) [Per J. Perlas-Bernabe, Second Division].

¹⁴¹ Id. at 520.

¹⁴² RULES OF COURT, Rule 112, sec. 1.

¹⁴³ RULES OF COURT, Rule 112, sec. 1.

¹⁴⁴ Go v. Court of Appeals, 283 Phil. 24 (1992) [Per J. Feliciano, En Banc].

¹⁴⁵ 283 Phil. 24 (1992) [Per J. Feliciano, En Banc].

¹⁴⁶ Id. at 43.

¹⁴⁷ J. Leonen, Dissenting Opinion in Pestilos v. Generoso, 746 Phil. 301, 353 (2014) [Per J. Brion, Second Division].

¹⁴⁸ RULES OF COURT, Rule 112, sec. 6.

¹⁴⁹ 480 Phil. 887 (2004) [Per J. Callejo, Sr., Second Division].

¹⁵⁰ Id. at 897.

¹⁵¹ Id.

¹⁵² Rollo, pp. 99–108.

¹⁵³ Id. at 163–166.

¹⁵⁴ 876 Phil. 364 (2020) [Per J. Leonen, En Banc].

¹⁵⁵ Id. at 399. (Citations omitted)

¹⁵⁶ Id. at 398–399.

¹⁵⁷ CONST., art. II, sec. 14, states:

SECTION 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

¹⁵⁸ Halaguena v. Philippine Airlines, Inc., 932 Phil. 963, 980 (2023) [Per J. Leonen, En Banc].

¹⁵⁹ Garcia v. Drilon, 712 Phil. 44, 100–101 (2013) [Per J. Perlas-Bernabe, En Banc].

¹⁶⁰ Convention on the Elimination of All Forms of Discrimination Against Women, art. 2(f), (September 3, 1981).

¹⁶¹ Convention on the Elimination of All Forms of Discrimination Against Women, art. 2(g), (September 3, 1981).

¹⁶² Alanis III v. Court of Appeals, 890 Phil. 74, 88 (2020) [Per J. Leonen, Third Division].

¹⁶³ Halaguena v. Philippine Airlines, Inc., 932 Phil. 963, 979 (2023) [Per J. Leonen, En Banc].

¹⁶⁴ Alanis III v. Court of Appeals, 890 Phil. 74, 88 (2020) [Per J. Leonen, Third Division].

¹⁶⁵ 750 Phil. 791 (2015) [Per J. Leonen, Second Division].

¹⁶⁶ Id. at 830–831.

¹⁶⁷ House of Representatives Electoral Tribunal v. Panga-Vega, 895 Phil. 46, 52 (2021) [Per J. Lopez, M., Second Division].

¹⁶⁸ Republic Act No. 9710 (2009), sec. 2, An Act Providing for The Magna Carta for Women, states:

Section 2. Declaration of Policy. — Recognizing that the economic, political, and sociocultural realities affect women’s current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men[.]

¹⁶⁹ Republic Act No. 9710 (2009), sec. 12, An Act Providing for The Magna Carta for Women.

¹⁷⁰ Alanis III v. Court of Appeals, 890 Phil. 74, 89 (2020) [Per J. Leonen, Third Division].

¹⁷¹ J. Leonen, Dissenting Opinion in Valencia v. People, 951 Phil. 163, 190 (2024) [Per J. Lazaro-Javier, Second Division].

¹⁷² 750 Phil. 791, 832 (2015) [Per J. Leonen, Second Division].

¹⁷³ Id.

¹⁷⁴ 932 Phil. 963 (2023) [Per J. Leonen, En Banc].

¹⁷⁵ Id. at 963.

¹⁷⁶ Id. at 985.

¹⁷⁷ Id. at 986.

¹⁷⁸ Kilusang Mayo Uno v. Aquino III, 850 Phil. 1168, 1188 (2019) [Per J. Leonen, En Banc]. See also Parcon-Song v. Parcon, 876 Phil. 364 (2020) [Per J. Leonen, En Banc].

¹⁷⁹ Bartolome S. Carale, Criminal Adultery and Fornication in the Philippines: A Re-Examination, 45 PHIL. L. J. 344 (1970).

¹⁸⁰ Jose Luis Diez Ripolles, The Evolution of Spanish Criminal Law: From the 1848 Penal Code to the 1995 Penal Code and Its Latest Reforms, 1 PHIL. JOURNAL OF JUDICIAL STUDIES, 28, 29–38 (2022).

¹⁸¹ Sobre Despenalización Del Adulterio y Del Amancebamiento (Depenalization of Adultery and Cohabitation) BOE-A-1978-13822 (1978).

¹⁸² Jose Luis Diez Ripolles, The Evolution of Spanish Criminal Law: From the 1848 Penal Code to the 1995 Penal Code and Its Latest Reforms, 1 PHIL. JOURNAL OF JUDICIAL STUDIES, 28, 34 (2022). See also Reial Academia Europea de Doctors, From adultery to de facto couples, March 14, 2019, available at https://raed.academy/en/from-adultery-to-de-facto-couples/ (last accessed, January 16, 2026).

¹⁸³ 18 Phil. 490 (1911) [Per J. Carson, En Banc]; Sobre Despenalización Del Adulterio y Del Amancebamiento (Depenalization of Adultery and Cohabitation) BOE-A-1978-13822 (1978).

¹⁸⁴ Id. at 494.

¹⁸⁵ 918-A Phil. 371 (2021) [Per J. Leonen, En Banc].

¹⁸⁶ Id. at 424.

¹⁸⁷ Id. at 424–426.

¹⁸⁸ Garcia v. Drilon, 712 Phil. 44, 66 (2013) [Per J. Perlas-Bernabe, En Banc].

¹⁸⁹ XXX v. People, 953 Phil. 462, 472 (2024) [Per J. Hernando, En Banc].

¹⁹⁰ Estacio v. Estacio, 885 Phil. 157, 169 (2020) [Per J. Leonen, Third Division].

¹⁹¹ Id.

¹⁹² 953 Phil. 462 (2024) [Per J. Hernando, En Banc].

¹⁹³ Id. at 486.

¹⁹⁴ Id. at 478.

¹⁹⁵ 953 Phil. 462 (2024) [Per J. Hernando, En Banc].

¹⁹⁶ Id. at 581–582.

¹⁹⁷ SAJ. Leonen, Dissenting Opinion in XXX v. People, 953 Phil. 462, 581–584 (2024) [Per J. Hernando, En Banc].

¹⁹⁸ Philippine Commission on Women, Repealing the Revised Penal Code provisions on Adultery and Concubinage, 1 (March 18, 2020).

¹⁹⁹ 88 Phil. 688 (1951) [Per J. Padilla, En Banc].

²⁰⁰ Id. at 691.

²⁰¹ REV. PEN. CODE, art. 333.

²⁰² Ocampo v. People, 72 Phil. 268, 269 (1941) [Per J. Moran, First Division].

²⁰³ People v. Zapata, 88 Phil. 688, 691 (1951) [Per J. Padilla, En Banc].

²⁰⁴ Philippine Commission on Women, Repealing the Revised Penal Code provisions on Adultery and Concubinage, 1 (March 18, 2020).

²⁰⁵ REV. PEN. CODE, art. 334.

²⁰⁶ REV. PEN. CODE, art. 334. See also Philippine Commission on Women, Repealing the Revised Penal Code provisions on Adultery and Concubinage, 1 (March 18, 2020).

²⁰⁷ REV. PEN. CODE, art. 333.

²⁰⁸ Corpuz v. People, 734 Phil. 353, 397 (2014) [Per J. Peralta, En Banc]. See also People v. Santos, 888 Phil. 235, 271–276 (2020) [Per C.J. Peralta, First Division]; Cahulogan v. People, 828 Phil. 742, 751–754 (2018) [Per J. Perlas-Bernabe, Second Division]; People v. Dagsa, 824 Phil. 704, 723–728 (2018) [Per J. Peralta, Second Division].

²⁰⁹ REV. PEN. CODE, art. 5.

Article 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. — Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.

In the same way the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

²¹⁰ Ordona v. Local Civil Registrar of Pasig City, 913 Phil. 625, 645 (2021) [Per J. Inting, En Banc].

²¹¹ Samahan ng mga Progresibong Kabataan v. Quezon City, 815 Phil. 1067, 1113–1114 (2017) [Per J. Perlas-Bernabe, En Banc].

²¹² Alanis III v. Court of Appeals, 890 Phil. 74, 89 (2020) [Per J. Leonen, Third Division].

²¹³ Philippine Commission on Women, Repealing the Revised Penal Code provisions on Adultery and Concubinage, 1 (March 18, 2020).

²¹⁴ SAJ. Leonen, Dissenting Opinion in XXX v. People, 953 Phil. 462, 593 (2024) [Per J. Hernando, En Banc].

²¹⁵ Id. at 593–594.

Case Digest

Gue v. Gue
G.R. No. 226171, June 3, 2026
[Per SAJ Leonen, En Banc]

Doctrines

1. To constitute a valid in flagrante delicto or hot pursuit arrest, it is indispensable that the arresting officers have personal knowledge of the fact of the commission of an offense.
2. An in flagrante delicto arrest under Rule 113, Section 5(a) requires that (a) the person to be arrested executes an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer.
3. A hot pursuit arrest under Rule 113, Section 5(b) requires that (a) an offense has in fact just been committed; and (b) the arresting officer has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested committed it. It is not enough to suspect that a crime may have been committed. A crime must in fact have been committed first.
4. The right to a preliminary investigation is statutory, not constitutional, but it is a substantive right and a component of due process.
5. Rule 112, Section 6 applies only to valid warrantless arrests. An inquest is proper only when the suspect is lawfully arrested without a warrant. If the arrest is invalid, the inquest is void and the accused is entitled to a preliminary investigation.
6. The absence of a preliminary investigation does not affect the court’s jurisdiction or the validity of the Information, and it is not a ground to quash. The trial court should instead suspend the proceedings and order a preliminary investigation.

Facts:

Wilson Gue (Wilson) and Eileen Cagalingan Gue (Eileen) married in 1994. In 2007, Eileen met Philippe Roland Codes (Codes), her physical therapist and fitness trainer at Fitness First. Wilson suspected the two of having an illicit relationship and claimed he confirmed it in 2009. He alleged that Eileen rented a condominium unit in Pasig City under Codes’s name. On August 24, 2009, Wilson filed a complaint for adultery with the National Bureau of Investigation (NBI).

On the afternoon of September 4, 2009, Wilson saw Eileen and Codes arrive at the condominium building. While waiting for NBI Senior Agent Arnold Rosales (Rosales), Wilson claimed that he heard the two groaning through the door. He said he climbed to the ceiling of the common area and saw them in bed caressing each other “in the actual start of their sexual intercourse.” When the NBI agents arrived, they and Wilson went to the unit, heard the two voices inside, and entered through the unlocked door. They arrested Eileen and Codes without a warrant. After an inquest, an Information for adultery was filed with the Metropolitan Trial Court (MeTC).

Eileen moved to quash the Information or, alternatively, to remand the case for preliminary investigation, and Codes joined the motion. The MeTC denied it. Eileen refused to enter a plea at arraignment and filed a Petition for Certiorari and Prohibition with the Regional Trial Court (RTC). At the RTC hearing on May 4, 2010, Wilson and Rosales testified as hostile witnesses. They admitted that Eileen and Codes were fully clothed when the agents entered, and that the photos taken during the arrest showed no caressing, kissing, or sexual intercourse.

The RTC found no grave abuse of discretion by the MeTC. It held that the absence of a preliminary investigation did not affect jurisdiction or the validity of the Information. However, it ruled the inquest void because the warrantless arrest did not fall under Rule 113, Section 5. It suspended the proceedings and remanded the case for preliminary investigation. The Court of Appeals (CA) affirmed. It held that because the arrest was illegal, Eileen was entitled to a preliminary investigation, and that she did not waive this right because she consistently asked for it and refused to plead.

Before the Supreme Court, Wilson argued that:

• the arrest was valid under Rule 113, Section 5;
• adultery is committed in secret and may be proved by circumstantial evidence;
• the arresting officers’ personal knowledge may come from information supplied by the victim;
• Eileen waived preliminary investigation by not asking for it within five days from the filing of the Information; and
• CA-G.R. SP No. 129581, a separate case that upheld the arrest, should control.

The Office of the Solicitor General (OSG) sided with Wilson on the validity of the arrest. The Court also required the parties to address whether criminalizing adultery is consistent with the rights to privacy and due process, Article II, Section 14 (fundamental equality of women and men), and the equal protection clause.

Issues:

1. Should the petition be dismissed outright due to procedural infirmities?
2. Was Eileen’s warrantless arrest valid?
3. Did Eileen waive her right to a preliminary investigation?
4. Is Article 333 of the Revised Penal Code unconstitutional for violating Article II, Section 14 of the Constitution?

Ruling:

1. Should the petition be dismissed outright due to procedural infirmities? — Yes, the petition is dismissible outright, but even if the rules were relaxed, it would still be denied on the merits.

“[O]ne who seeks to avail of the right to appeal must strictly comply with the requirements of the rules[.]” This is based on the notion that appeal is not a matter of right nor a component of due process. It is a mere statutory privilege which may only be exercised in the manner provided by law.

Rule 45 of the Rules of Court governs the appeal from the Court of Appeals to this Court. x x x

SECTION 5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

Noncompliance “with the requirements regarding proof of service and contents of and the documents which should accompany the petition[,]” shall be a ground for the dismissal of the petition.

In this case, petitioner failed to comply with the requirements under Rule 45. Particularly, he failed to submit the following: (a) proof of service on the Court of Appeals; (b) clearly legible duplicate original or certified true copies of the assailed decision and resolution; (c) verified statement of material dates; and (d) a soft copy of the pleading.

Petitioner’s failure to comply with the rules warrants the outright dismissal of his petition.

x x x

Just the same, even if this Court exercises its equity jurisdiction and relaxes the application of the rules in the interest of substantial justice, the petition will still be denied. The Court of Appeals correctly sustained the findings of the Regional Trial Court.

2. Was Eileen’s warrantless arrest valid? — No. It was neither an in flagrante delicto arrest nor a hot pursuit arrest.

Article III, Section 2 of the Constitution states:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

This provision provides for the general rule that arrest may only be effected by virtue of a warrant. Nonetheless, the Revised Rules of Criminal Procedure recognizes certain exceptions. Rule 113, Section 5, states:

SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; x x x

Macad v. People differentiated these two instances of warrantless arrest:

In warrantless arrests made pursuant to Section 5(a), Rule 113, two (2) elements must concur, namely: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer. On the other hand, Section 5(b), Rule 113 requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the accused had committed it.

In both instances, the officer’s personal knowledge of the fact of the commission of an offense is essential. x x x

(a) Not an in flagrante delicto arrest

At the outset, we find that no overt act was done in the presence of the arresting officers establishing that private respondent and Codes have just committed, are actually committing, or are attempting to commit adultery. To recall, private respondent and Codes were inside a room prior to their apprehension. x x x

The importance of an overt act executed “in the presence or within the view of the arresting officer” was emphasized in Antiquera v. People. x x x In ruling that there was no in flagrante delicto arrest, this Court held: x x x “Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of accused Antiquera without warrant under the above-mentioned rule.”

Similarly, in Antiquera, the arresting officers in this case witnessed no overt act that would have prompted them to enter the condo unit. Prior to them entering the unit, the police officers were unaware of what was happening inside considering that the door was closed.

Further, this Court notes that when petitioner and Rosales were presented as hostile witnesses before the Regional Trial Court they admitted that when they entered the condo unit and implemented the arrest, private respondent and Codes were fully clothed. Even the pictures taken during the arrest did not show that private respondent and Codes were in the act of committing, or about to commit, or had just committed adultery:

Testimony of petitioner

Atty. Butuyan: Now, when you opened the door Mr. Witness, Eileen and the other man were fully cloth [sic] they have pants and shirts, correct?

A: Yes xxx.

. . . .

Atty. Butuyan: We just wanted to show that none of the pictures show that the petitioner was caressing or even the kissing the respondent, Your Honor. These are material in this case.

Court: Can you stipulate?

Atty. Martin Samson: We stipulate Your Honor that the pictures do not show that.

Atty. Butuyan: So, for the record, the respondent has stipulated Your Honor that none of the pictures show that there was caressing, there was no sexual intercourse Your Honor. The respondent stipulated that there was no kissing in the pictures Your Honor.

Atty. Martin Samson: We stipulate Your Honor.

Testimony of Rosales

Q: Now, the pictures that you took Mr. witness they did not show the two persons inside in the act of committing sexual intercourse correct?

A: Yes, Sir.

. . . .

Q: They were dressed with pants and shirts?

A: Yes, sir.

Based on the foregoing, this Court finds that the prosecution failed to establish all the requisites for an in flagrante delicto arrest. No “overt act constituting the crime [was] done in the presence or within the view of the arresting officer[s].”

(b) Not a hot pursuit arrest

Neither can their apprehension be considered as a hot pursuit arrest.

To reiterate, a hot pursuit arrest requires the presence of the following elements: “first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.”

Whether the warrantless arrest is considered in flagrante delicto or one in hot pursuit, the person making the arrest must have “personal knowledge of the fact of the commission of an offense[.]” The difference between the two is that in case of “in flagrante delicto arrests, the arresting officer must have personally witnessed the commission of the crime[,]” while in a hot pursuit arrest, the commission of the crime need not be personally witnessed by the apprehending officer.

In this case, private respondent and Codes were arrested by reason of the information given by petitioner. He purportedly saw them “caressing, embracing and touching each other’s private parts[.]” He allegedly witnessed them in the start of a lovemaking activity. According to him, “[b]y the time the NBI operatives arrive, the act would have been consummated.”

It must be stressed, however, that for a hot pursuit arrest to be valid, the commission of a crime must be undisputed. As this Court explained in Calleja v. Medialdea:

x x x For this mode of warrantless arrest, the Court has emphasized that it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime – a crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition, and it is not enough to suspect that a crime may have been committed.

Petitioner’s assertion that the crime of adultery would have been committed by the time the NBI operatives arrive is insufficient to meet the requirement of the rules. The ruling in People v. Villareal elucidates on this matter:

x x x It is not enough that PO3 de Leon had reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been committed first, which does not obtain in this case.

3. Did Eileen waive her right to a preliminary investigation? — No. Because her warrantless arrest was invalid, she was entitled to a preliminary investigation, and the RTC correctly remanded the case.

Preliminary investigation is defined as “an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.”

x x x The right to a preliminary investigation is not constitutional, but merely statutory in character. All the same, it is a substantive right and a component of due process. As explained in Go v. Court of Appeals:

x x x The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. x x x To deny petitioner’s claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.

Preliminary investigation shall not be necessary if the accused was lawfully arrested without a warrant. In cases of valid warrantless arrest, the person arrested shall be subjected to inquest proceeding:

SECTION 6. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. x x x

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

Rule 112, Section 6 of the Rules of Court applies only in cases of valid warrantless arrest. The rule was stressed in San Agustin v. People. x x x It noted that “an inquest investigation is proper only when the suspect is lawfully arrested without a warrant.” However, this Court clarified:

[T]hat the absence of a preliminary investigation does not affect the jurisdiction of the trial court but merely the regularity of the proceedings. It does not impair the validity of the Information or otherwise render it defective. Neither is it a ground to quash the Information or nullify the order of arrest issued against him or justify the release of the accused from detention. However, the trial court should suspend proceedings and order a preliminary investigation considering that the inquest investigation conducted by the State Prosecutor is null and void.

Here, considering that private respondent’s warrantless arrest was invalid, the Regional Trial Court correctly ordered the remand of the case for preliminary investigation.

Finally, this Court agrees with the Court of Appeals that CA-G.R. SP No. 129581 has no decisive bearing in the resolution of this case.

The issue in CA-G.R. SP No. 129581 was whether the Secretary of Justice committed grave abuse of discretion in ruling that the NBI agents did not commit arbitrary detention. x x x However, as correctly argued by private respondent, certain pieces of evidence presented in the present case were not submitted and considered in CA-G.R. SP No. 129581. The testimonies of petitioner and Rosales during the May 4, 2010 hearing were not considered in CA-G.R. SP No. 129581.

4. Is Article 333 of the Revised Penal Code unconstitutional for violating Article II, Section 14 of the Constitution? — Not resolved. The constitutional question is not the lis mota of the case.

Having resolved the first three issues, we need not discuss the question regarding the constitutionality of Article 333 of the Revised Penal Code. In Parcon-Song v. Parcon, this Court stressed that when a case involves a constitutional question, the issue of constitutionality shall only be discussed when it has been properly raised and presented by the parties and its resolution is necessary in the conclusion of the case:

x x x Courts are obligated to presume that the acts of Congress are valid, unless the contrary is clearly shown. Thus, courts avoid resolving the constitutionality of a law if the case can be ruled on other grounds. The question of constitutionality will only be passed upon if it is indispensable to the resolution of the case, but it cannot be raised collaterally. x x x

Notably, since the resolution of the constitutional question is not necessary in the final determination of the case, this Court may no longer resolve the fourth or final issue.

All the same, this Court notes that it may be time to reexamine the continued imposition of criminal liability for adultery.

x x x

The constitutional right of every individual to “fundamental equality before the law of women and men,” various statutory enactments, and our international commitments, render doubtful the constitutionality of adultery as a crime.

x x x

Nonetheless, our duty to ensure gender equality notwithstanding, this Court “is bound by the doctrine of separation of powers[.]” As previously discussed, we cannot nullify or cause the invalidation of the legislature’s act when its constitutionality is not the lis mota of the case.

x x x

Unlike in adultery, where the wife and her paramour may be prosecuted for the crime for “as many times as there were carnal acts consummated[,]” in concubinage, the offending husband’s sexual intercourse with another does not constitute a distinct and separate crime for which he may be held criminally liable.

In addition, while the crime of concubinage is more difficult to prove, it carries a lighter penalty for the offending parties. x x x

x x x

Taking into consideration these observations, and applying Article 5 of the Revised Penal Code, we deem this as “an opportune moment to signal to the Legislature the incongruity between our domestic law and our international obligation to eliminate the discrimination against women[.]”

The Court denied the petition and affirmed the CA. Under Article 5 of the Revised Penal Code, it directed that copies of the Decision be furnished to the President through the Department of Justice, and to the Senate President and the Speaker of the House of Representatives.

Discussion:

1. Procedural infirmities

Appeal is a statutory privilege, so Rule 45 must be followed strictly. Wilson failed four requirements:

• Proof of service on the CA. Missing.
• Legible duplicate originals or certified true copies of the assailed CA Decision and Resolution. Missing.
• Verified statement of material dates. Missing.
• Soft copy of the pleading. Missing.

Each omission is a ground for outright dismissal under Rule 45, Section 5 and Rule 56, Section 5(d). Wilson asked the Court to relax the rules for substantial justice. The Court addressed the merits anyway, but only to show that relaxing the rules would not change the result.

Bar takeaway: If a question involves a defective Rule 45 petition, state the defects and the rule on dismissal first, then say whether relaxing the rules would change the outcome.

2. Validity of the warrantless arrest

The general rule under Article III, Section 2 is that an arrest requires a warrant. The exceptions are in Rule 113, Section 5. Both exceptions at issue require personal knowledge by the arresting officer, and both failed here.

(a) In flagrante delicto arrest (Section 5[a])

• Overt act showing that a crime has just been committed, is being committed, or is being attempted. Absent. When the agents entered, Eileen and Codes were fully clothed in pants and shirts. Both Wilson and Rosales admitted this on the stand. Wilson’s counsel also stipulated that the photos showed no caressing, kissing, or sexual intercourse. For adultery, the relevant overt act is sexual intercourse, and nothing seen by the agents showed it.
• Overt act done in the presence or within the view of the arresting officer. Absent. The door was closed, so the agents did not know what was happening inside before they entered. As in Antiquera v. People, no crime was “plainly exposed to the view” of the officers. Hearing voices from outside a closed door is not seeing a crime.

(b) Hot pursuit arrest (Section 5[b])

• An offense has in fact just been committed. Absent. Wilson claimed he saw only the “start” of lovemaking and assumed the act “would have been consummated” by the time the agents arrived. That is an assumption, not proof. Under Calleja v. Medialdea and People v. Villareal, the crime must actually have been committed first, and suspicion is not enough.
• Probable cause based on the arresting officer’s personal knowledge. Absent. The agents acted solely on Wilson’s information. They did not perceive with their own senses facts showing that adultery had just been committed.

Wilson argued that adultery is committed in secret and may be proved by circumstantial evidence. That argument concerns how adultery is proved at trial. It does not dispense with the requirements for a lawful warrantless arrest.

Bar takeaway: Apply Section 5(a) and 5(b) separately. Section 5(a) requires that the officer personally saw the crime. Section 5(b) requires that a crime was actually just committed and that the officer personally knows facts pointing to the person arrested. Information from a complainant alone satisfies neither.

3. Waiver of preliminary investigation

The outcome of this issue followed from the invalid arrest:

• Is a preliminary investigation required? Yes. Under Rule 112, Section 1, preliminary investigation is required when the offense is punishable by at least four years, two months, and one day. The penalty for adultery is prision correccional in its medium and maximum periods, which falls within this range.
• Can an inquest replace it? Only if the arrest was lawful. Rule 112, Section 6 applies only to valid warrantless arrests. Since the arrest was invalid, the inquest was void, following San Agustin v. People.
• Did Eileen waive it? No. Wilson’s waiver argument relied on the five-day period to ask for preliminary investigation after the Information is filed. That period is found in Section 6, which does not apply because the arrest was invalid. The CA, whose ruling the Court affirmed, also noted that Eileen consistently asked for a preliminary investigation and refused to enter a plea.
• What is the proper remedy? A suspension and remand, not quashal. The lack of a preliminary investigation does not affect jurisdiction or the validity of the Information. The trial court should suspend the proceedings and order a preliminary investigation, which is exactly what the RTC did.
• Does CA-G.R. SP No. 129581 control? No. That case dealt with a different issue, namely probable cause for arbitrary detention against the NBI agents. It also did not consider the May 4, 2010 testimonies of Wilson and Rosales, which proved decisive here.

Bar takeaway: Invalid warrantless arrest → void inquest → right to preliminary investigation → suspend and remand, not quash.

4. Constitutionality of Article 333 (adultery)

The four requisites of judicial review apply here: an actual case, standing, raising the question at the earliest opportunity, and lis mota. The Court focused on the fourth:

• Lis mota. Absent. The case was fully resolved on the invalid arrest and the right to preliminary investigation, so the constitutional question was not necessary to decide it. Courts presume laws valid and avoid constitutional questions when a case can be decided on other grounds (Parcon-Song v. Parcon). Separation of powers also kept the Court from striking down Article 333.

Even so, the Court said in obiter that the constitutionality of adultery as a crime is “doubtful,” citing:

• Article II, Section 14 of the Constitution. It requires the State to actively “ensure” equality of women and men, which is a more active duty than the equal protection clause (Alanis III v. Court of Appeals).
• CEDAW, Article 2(f) and (g). The Philippines undertook to repeal penal provisions that discriminate against women.
• Republic Act No. 9710 (Magna Carta of Women). It directs the review and repeal of discriminatory laws.
• The unequal treatment of wives and husbands. Adultery requires only proof of sexual intercourse, each act is a separate crime, and both the wife and her paramour receive the heavier penalty. Concubinage is harder to prove and carries lighter penalties, and the concubine is penalized only with destierro.
• Changed circumstances. The original reason for punishing adultery, preventing “spurious heirs” (U.S. v. Mata), may no longer apply because DNA testing can now establish paternity (Aquino v. Aquino). Republic Act No. 9262 also now covers marital infidelity as psychological violence.

Under Article 5 of the Revised Penal Code, the Court sent copies of the Decision to the President through the DOJ, and to the Senate President and the Speaker, signaling that the law should be reexamined.

Bar takeaway: The Court did not declare Article 333 unconstitutional, so adultery remains a crime. What the case teaches is the lis mota requirement and the court’s power to recommend legislative action under Article 5 of the Revised Penal Code.