Petitioner further contends that the ruling of the Court in Mercado v. Tan[15] is inapplicable in his case because in theMercado case the prosecution for bigamy was initiated before the declaration of nullity of marriage was filed. In petitioner’s case, the first marriage had already been legally dissolved at the time the bigamy case was filed in court.
We find no reason to disturb the findings of the CA. There is nothing in the law that would sustain petitioner’s contention.
Article 349 of the Revised Penal Code states:
The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.
The elements of this crime are as follows:
1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;
3. That he contracts a second or subsequent marriage; and
4. That the second or subsequent marriage has all the essential requisites for validity.[16]
The instant case has all the elements of the crime of bigamy. Thus, the CA was correct in affirming the conviction of petitioner.
Petitioner was legally married to Thelma on 26 November 1992 at the Metropolitan Trial Court of Muntinlupa City. He contracted a second or subsequent marriage with Edita on 10 December 2001 in Meycauayan, Bulacan. At the time of his second marriage with Edita, his marriage with Thelma was legally subsisting. It is noted that the finality of the decision declaring the nullity of his first marriage with Thelma was only on 27 June 2006 or about five (5) years after his second marriage to Edita. Finally, the second or subsequent marriage of petitioner with Edita has all the essential requisites for validity. Petitioner has in fact not disputed the validity of such subsequent marriage.[17]
It is evident therefore that petitioner has committed the crime charged. His contention that he cannot be charged with bigamy in view of the declaration of nullity of his first marriage is bereft of merit. The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void.[18]
The Family Law Revision Committee and the Civil Code Revision Committee which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.[19]
In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her marriage, the person who marries again cannot be charged with bigamy.[20]
In numerous cases,[21] this Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral.
If petitioner’s contention would be allowed, a person who commits bigamy can simply evade prosecution by immediately filing a petition for the declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him. We note that in petitioner’s case the complaint was filed before the first marriage was declared a nullity. It was only the filing of the Information that was overtaken by the declaration of nullity of his first marriage. Following petitioner’s argument, even assuming that a complaint has been instituted, such as in this case, the offender can still escape liability provided that a decision nullifying his earlier marriage precedes the filing of the Information in court. Such cannot be allowed. To do so would make the crime of bigamy dependent upon the ability or inability of the Office of the Public Prosecutor to immediately act on complaints and eventually file Informations in court. Plainly, petitioner’s strained reading of the law is against its simple letter.
Settled is the rule that criminal culpability attaches to the offender upon the commission of the offense, and from that instant, liability appends to him until extinguished as provided by law, and that the time of filing of the criminal complaint (or Information, in proper cases) is material only for determining prescription.[22] The crime of bigamy was committed by petitioner on 10 December 2001 when he contracted a second marriage with Edita. The finality on 27 June 2006 of the judicial declaration of the nullity of his previous marriage to Thelma cannot be made to retroact to the date of the bigamous marriage.
