Juanaria Francisco, the plaintiff, and Lope Tayao, the defendant, contracted marriage in the City of Manila in 1912. They separated in 1917. The husband removed to Zamboanga. There he was later prosecuted for having committed adultery with a married woman
On these facts, the action of Juanaria Francisco, the plaintiff, against Lope Tayao, the defendant, to have the bonds of matrimony between them dissolved was instituted in the Court of First Instance of Manila and was there denied by Judge of First Instance Revilla.
The trial judge based his decision principally on the point that the plaintiff was not an innocent spouse within the meaning of sections 1 and 3 of the Divorce Law. This findings, as well as the dismissal of the complaint, is challenged by the plaintiff on appeal.
Whether or not the marriage be dissolved.
Divorce was not granted. The Philippine Divorce Law, Act No. 2710, is emphatically clear in this respect. Section 1 of the law reads: “A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the husband . . . .” Defendant was prosecuted for, and was convicted of, the crime of adultery and not the crime of concubinage. The criminal case was instituted on the complaint of the injured husband. It was not instituted by the injured wife which is essential for the proper initiation of a prosecution for concubinage.