Death or Physical Injury Inflicted Under Exceptional Circumstances

Do you know that killing your adulterous wife or her paramour is technically permitted under Article 247 of the Revised Penal Code, depending on the circumstance?

Article 247 provides, “Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injuries, shall suffer the penalty of destierro (banishment).”

The law only applies if the following elements are present:

The offender is any lgelly married person;
The offender surprises his spouse in the act of committing sexual intercourse with another person; and
The offender kills or seriously injures any or both of them during the act of sexual intercourse or immediately thereafter.

Note: This article does not define a crime. It provides a defense, which the accused must prove

The rationale for Art. 247

The law affords protection to a spouse considered to have acted in a justified outburst of passion or a state of mental disequilibrium. The offended spouse has no time to regain his self‐control.

Art. 247 far from defining a felony is more of an exempting circumstance as the penalty intended more for the protection of the accused rather than a punishment. Put differently, it practically grants a privilege amounting to an exemption for adequate punishment.

Two stages contemplated under Art. 247

1. When the offender surprised the other spouse with a paramour or mistress.

“Surprise” means to come upon suddenly or unexpectedly.

The attack must take place while the sexual intercourse is going on. If the surprise was before or after the intercourse, no matter how immediate, Article 247 does not apply.

2. When the offender kills or inflicts serious physical injury upon the other spouse and paramour while in the act of intercourse, or immediately thereafter, that is, after surprising.

The phrase “immediately thereafter” has been interpreted to mean that between the surprising and the killing or the inflicting of the physical injury, there should be no interruption or interval of time. In other words, it must be a continuous process.

“in the act of committing sexual intercourse” means that there must be actual sexual intercourse. It does not include preparatory acts.

It not necessary that the spouse actually saw the sexual intercourse.

It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed.

Note: The killing or infliction of physical injuries must be in the act of sexual intercourse or immediately thereafter. Thus, where the accused surprised his wife and her paramour in the carnal act but the latter ran away, he first chased him and unable to catch up with him, returned to his wife whom he found at the stairs of their house, no longer in the place where he saw her having sex with the paramour and killed her, he can avail of Art 247.

A bar examinee, who killed the paramour of his wife in a mahjong session, an hour after he had surprised them in the act of sexual intercourse in his house, since at that time, he had to run away and get a gun as the paramour was armed, was granted the benefits of this article. (People v. Abarca, G.R. No. 74433, Sept.14, 1987)

2001 Bar Question

A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11:00 p.m. to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door very carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window. A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to their bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical injuries of B.

1. Is A liable for C’s death? Why?

2. Is A liable for B’s injuries? Why?

1. Yes. A is liable for C’s death but under the exceptional circumstances in Art. 247 of the RPC where only destierro is prescribed. Article 247 governs since A surprised his wife B in the act of having sexual intercourse with C, and the killing of C was immediately thereafter as the discover, escape, pursuit and killing of C form one continuous act. (US v. Vargas, 2 Phil 194)

2. Likewise, A is liable for the serious physical injuries he inflicted on his wife but under the same exceptional circumstances in Article 247 of the Revised Penal Code for the same reason.

The author takes no responsibility for the validity, correctness and result of this work. The information provided is not a legal advice and it should not be used as a substitute for a competent legal advice from a licensed lawyer. See the disclaimer

Neil Christian

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