FIRST DIVISION [G.R. No. 137590. March 26, 2001.] FLORENCE MALCAMPO-SIN, petitioner, vs. PHILIPP T. SIN, respondent.

DECISION PARDO, J p: The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of the family. 1 It is this inviolability which is central to our traditional and religious concepts of morality and provides the very bedrock on which our society finds stability. 2 Marriage is immutable and when both spouses give their consent to enter it, their consent becomes irrevocable, unchanged even by their independent wills. However, this inviolability depends on whether the marriage exists and is valid. If it is void ab initio, the "permanence" of the union becomes irrelevant, and the Court can step in to declare it so. Article 36 of the Family Code is the justification. 3 Where it applies and is duly proven, a judicial declaration can free the parties from the rights, obligations, burdens and consequences stemming from their marriage. A declaration of nullity of marriage under Article 36 of the Family Code requires the application of procedural and substantive guidelines. While compliance with these requirements mostly devolves upon petitioner, the State is likewise mandated to actively intervene in the procedure. Should there be non-compliance by the State with its statutory duty, there is a need to remand the case to the lower court for proper trial. The Case What is before the Court 4 is an appeal from a decision of the Court of Appeals 5 which affirmed the decision of the Regional Trial Court, Branch 158, Pasig City 6dismissing petitioner Florence Malcampo-Sin's (hereafter "Florence") petition for declaration of nullity of marriage due to psychological incapacity for insufficiency of evidence. The Facts On January 4, 1987, after a two-year courtship and engagement, Florence and respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were married at St. Jude Catholic Parish in San Miguel, Manila. 7

On September 20, 1994, Florence filed with the Regional Trial Court, Branch 158, Pasig City, a complaint for "declaration of nullity of marriage" against Philipp. 8 Trial ensued and the parties presented their respective documentary and testimonial evidence. cSTHAC On June 16, 1995, the trial court dismissed Florence's petition. 9 On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court of Appeals. 10 After due proceedings, on April 30, 1998, the Court of Appeals promulgated its decision, the dispositive portion of which reads: "IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The Decision appealed from is AFFIRMED. Cost against the Appellant." 11 On June 23, 1998, petitioner filed with the Court of Appeals a motion for reconsideration of the aforequoted decision. 12 On January 19, 1999, the Court of Appeals denied petitioner's motion for reconsideration. 13 Hence, this appeal. 14 The Court's Ruling We note that throughout the trial in the lower court, the State did not participate in the proceedings. While Fiscal Jose Danilo C. Jabson 15 filed with the trial court a manifestation dated November 16, 1994, stating that he found no collusion between the parties, 16 he did not actively participate therein. Other than entering his appearance at certain hearings of the case, nothing more was heard from him. Neither did the presiding Judge take any step to encourage the fiscal to contribute to the proceedings. The Family Code mandates: "ARTICLE 48.In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed(underscoring ours).

"In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment." It can be argued that since the lower court dismissed the petition, the evil sought to be prevented (i.e., dissolution of the marriage) did not come about, hence, the lack of participation of the State was cured. Not so. The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. This is made clear by the following pronouncement: "(8)The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, 17 briefly stating therein his reasons for his agreement or opposition as the case may be, to the petition. The Solicitor-General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095 (undescoring ours)." 18 The records are bereft of any evidence that the State participated in the prosecution of the case not just at the trial level but on appeal with the Court of Appeals as well. Other than the "manifestation" filed with the trial court on November 16, 1994, the State did not file any pleading, motion or position paper, at any stage of the proceedings. In Republic of the Philippines v. Erlinda Matias Dagdag, 19 while we upheld the validity of the marriage, we nevertheless characterized the decision of the trial court as "prematurely rendered" since the investigating prosecutor was not given an opportunity to present controverting evidence before the judgment was rendered. This stresses the importance of the participation of the State. Having so ruled, we decline to rule on the factual disputes of the case, this being within the province of the trial court upon proper re-trial. Obiter Dictum For purposes of re-trial, we guide the parties thus: In Republic vs. Court of Appeals, 20 the guidelines in the interpretation and application of Article 36 of

the Family Code are as follows (omitting guideline (8) in the enumeration as it was already earlier quoted): "(1)The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. "(2)The root cause of the psychological incapacity must be: a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically (sic) ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. SADECI "(3)The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. "(4)Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be

absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. "(5)Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. "(6)The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such noncomplied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

Let the case be REMANDED to the trial court for proper trial. No costs. SO ORDERED. TAIEcS Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

"(7)Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts." The Fallo WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and the decision of the Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16, 1995.

EN BANC [G.R. No. L-13553. February 23, 1960.] JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent. Joselito J. Coloma for petitioner. No appearance for respondent. SYLLABUS 1.LEGAL SEPARATION; CONFESSION OF JUDGMENT; EXISTENCE OF EVIDENCE OF ADULTERY INDEPENDENTLY OF CONFESSION. Where there is evidence of the adultery independently of the defendant's statement agreeing to the legal separation, the decree of separation should be granted, since it would not be based on the confession but upon the evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively on defendant's confession. 2.ID.; ID.; ADMISSIBILITY OF CONFESSION MADE OUTSIDE OF COURT. Article 101 of the new Civil Code does not exclude, as evidence, any admission or confession made by the defendant outside of the court. 3.ID.; ID.; COLLUSION MAY NOT BE INFERRED FROM CONFESSION. Collusion may not be inferred from the mere fact that the guilty party confesses to the offense of adultery, desires the divorce and makes no defense. 4.ID.; CONDONATION; FAILURE OF HUSBAND TO SEARCH FOR ERRING WIFE. In the case at bar, the wife left her husband after the latter discovered her dates with other men. Held: The failure of the husband actively to search for his wife and take her home does not constitute condonation or consent to the adultery. It was not his duty to search for her. DECISION BENGZON, J p: Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription. We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith: "ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot

be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition." "ART. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated." The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame. Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat. According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately. "On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was got filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point 1 As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed. As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand. 2 This did not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adulteryindependently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendant told the Fiscal that she "liked also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.) Collusion in divorce or legal separation means the agreement. ". . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court

as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce." (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.) In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taken place, according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers,vs. Conyers, 224 S. W. [2d] 688.) And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.) We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. Two decisions 3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband. Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouses, with all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered. Pars, C. J., Padilla, Montemayor, Labrador, Concepcin, Reyes, J. B. L., Endencia, Barrera and Gutirrez David, JJ., concur.

FIRST DIVISION [G.R. No. L-30977. January 31, 1972.] CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ,petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for petitioner and appellant. Deogracias C. Eufemio for respondent and appellee. SYLLABUS 1.CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE. The death of the plaintiff before final decree in an action for legal separation abates the action. An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation and in its article 108, by providing that the spouses can, by reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. 2.ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE ON PROPERTY RELATIONS. A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. 3.ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE OF THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF THE SPOUSE INVOLVED. From Art. 106 of the Civil Code of the Philippines it is apparent that the right to the dissolution of the conjugal partnership or gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as revocation testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under section 17 Rule 3 of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. The same result flows from a consideration of the enumeration of the actions that

survive for or against administrators in Section 1, Rule 67, of the Revised Rules of Court which shows that neither action for legal separation or for annulment of marriage can be deemed fairly included therein. 4.ID.; ID.; ID.; ID.; ID.; REASON. The reason why an action is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. 5.ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO OF MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON DEFENDANT'S PROPERTY RIGHTS. A petition for a declaration of nullity ab initio of marriage becomes moot and academic upon the death of the wife, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Art. 144 of the Civil Code of the Philippines could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. 6.ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP. Even if the bigamous marriage had not been void ab initio but only voidable under Article 83, par. 2 of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, par. 2 of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in section 3 of the Revised Rule 73, and not in the annulment proceedings.

DECISION REYES, J.B.L., J p: Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment. On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits. In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok. Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death. On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3 Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: "When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?" The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation presupposes a valid marriage, while the petition for nullity has a voidable marriage as a precondition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? An action for legal separation which involves nothing more than the bed-andboard separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. ". . . When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. D. 1933, 332." 4 "Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141." 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: "Art. 106.The decree of legal separation shall have the following effects: "(1)The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; "(2)The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176; "(3)The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian; "(4)The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law." . . . From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section

17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. "Sec. 17.Death of party.After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. . . ." The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court: "SECTION 1.Actions which may and which may not be brought against executor or administrator.No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him." Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and

determined in a proper action for partition by either the appellee or by the heirs of the appellant. In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

SECOND DIVISION [G.R. No. 79284. November 27, 1987.] FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents. DECISION PADILLA, J p: A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case. On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437-111. On 14 November 1986, application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered the payment of support pendente lite. In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such as, the application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him by the private respondent. In support of his contention, petitioner cites Art. 111, Sec. 3 of the 1985 Rules on Criminal Procedure, which states: "SECTION 3.Other civil action arising from offenses. Whenever the offended party shall have instituted the civil action to enforce the civil liability arising from the offense, as contemplated in the first paragraph of Section 1 hereof, the following rules shall be observed: (a)After a criminal action has been commenced, the pending civil action arising from the same offense shall be suspended,

in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . ." The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1 Petitioner's contention is not correct. In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit: Cdpr "SECTION 1.Rules governing civil actions arising from offenses. Except as otherwise provided by law, the following rules shall be observed: (a)When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately; (b)Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action; (c)After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted; and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered; . . ." (Emphasis supplied) The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may

proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August 1987: "The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads: "After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered." (emphasis supplied). The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111 which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense." As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code" 2 Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage. Cdpr Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5 Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7 Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of support pendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent. Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken. WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner. SO ORDERED. Yap, Melencio-Herrera, Paras and Sarmiento, JJ ., concur.

EN BANC [G.R. No. L-10033. December 28, 1956.] BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee. Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee. SYLLABUS 1.HUSBAND AND WIFE; INFIDELITIES AMOUNTING TO ADULTERY; CONDONATION DEPRIVES OFFENDED SPOUSE OF ACTION FOR LEGAL SEPARATION. Granting that the infidelities amounting to adultery were committed by the wife, the act of the husband in persuading her to come along with him, and the fact that she went with him and together they slept as husband and wife, deprives him, as the alleged offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. 2.ID.; ID.; ID.; EXTENT OF COHABITATION TO CONSTITUTE CONDONATION. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L.J. Prob. 73). DECISION FELIX, J p: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case to this Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with the sisters of the husband in said municipality, but before the latter left to report back to duty, he and his wife came to an agreement that Leonila would stay with his sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sisters-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers (which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which he claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department. In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. The motion to dismiss was predicated on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the acts charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss, i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for

review to the Court of Appeals, appellant's counsel maintaining that the lower court erred: (a)In so prematurely dismissing the case; (b)In finding that there was condonation on the part of plaintiff-appellant; and (c)In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to this Superiority. The Civil Code provides: ART. 97.A petition for legal separation may be filed: ( 1 )For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or ( 2 )An attempt by one spouse against the life of the other. ART. 100.The legal separation may be claimed only by the innocent spouse provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 102.An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouvier's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the

only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon. But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point: "In the hearing of the case, the plaintiff further testified as follows: 'Q.Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court why you want to separate from your wife? A.I came to know that my wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser.' (p. 11, t. s. n.). 'Q.Did you finally locate her? A.Four days later or on the fifth day since my arrival she went to the house of our god-mother,

and as a husband I went to her to come along with me in our house but she refused.' (p. 12, t. s. n.). 'Q.What happened next? A.I persuaded her to come along with me. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong." (p. 12, t. s. n.) 'Q.How long did you remain in the house of your cousin Pedro Bugayong? A.One day and one night.' (p. 12, t. s. n.) 'Q.That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you sleep together? A.Yes, sir.' (p. 19, t. s. n.) 'Q.On the next night, when you slept in your own house, did you sleep together also as husband and wife? A.Yes, sir.' (p. 19, t. s. n.) 'Q.When was that? A.That was in August, 1952.' (p. 19, t. s. n.) 'Q.How many nights did you sleep together as husband and wife? A.Only two nights.' (p. 19, t. s. n.) "The New Civil Code of the Philippines, in its Art. 97, says: 'A petition for legal separation may be filed: (1)For adultery on the part of the wife and concubinage on the part of the husband as defined in the Penal Code.' and in its Art. 100 it says: 'The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation can not be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.' "A detailed examination of the testimony of the plaintiff-husband, especially these portions quoted above,

clearly shows that there was a condonation on the part of the husband for the supposed 'acts of rank infidelity amounting to adultery' committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. This reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. "In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that 'condonation is implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarily implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong.' "In Tiffany's Domestic and Family Relations, section 107 says: 'Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied'. "It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband. (27 Corpus Juris Secundum, section 61 and cases cited therein).

"In the light of the facts testified to by the plaintiffhusband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable." Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). If there had been cohabitation, to what extent must it be to constitute condonation? Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d). A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs.Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night(Toulson vs. Toulson, 50 Atl 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the case at bar, the question of condonation was raised in the second ground of

the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court). Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

THIRD DIVISION [G.R. No. L-53880. March 17, 1994.] ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and EDUARDO C. PACETE, petitioners, vs.HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE, respondents. DECISION VITUG, J p: The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion. cdrep On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation of property. In her complaint, she averred that she was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of property either in his name and Clarita or in the names of his children with Clarita and other "dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation between her and Pacete was impossible since he evidently preferred to continue living with Clarita. LibLex The defendants were each served with summons on 15 November 1979. They filed a motion for an extension of twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed a second motion for an extension of another thirty (30) days from 20 December 1979. On 07 January 1980, the lower court granted the motion but only for twenty (20) days to be

counted from 20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February 1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted from the expiration of the 30-day period previously sought" within which to file an answer. The following day, or on 06 February 1980, the court denied this last motion on the ground that it was "filed after the original period given . . . as first extension had expired." 1 The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith granted. The plaintiff was then directed to present her evidence.2 The court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22 February 1980. prcd On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus "WHEREFORE, order is hereby issued ordering: "1. The issuance of a Decree of Legal Separation of the marriage between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L. Pacete, in accordance with the Philippine laws and with consequences, as provided for by our laws; cdrep "2. That the following properties are hereby declared as the conjugal properties of the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half and half, to wit: "1.The parcel of land covered by TCT No. V-815 which is a parcel of land situated in the barrio of Langcong, Municipality of Matanog (previously of Parang), province of Maguindanao (previously of Cotabato province) with an area of 45,256 square meters registered in the name of Enrico Pacete, Filipino, of legal age, married to Conchita Alanis as shown in Exhibits 'B' and 'B-1' for the plaintiff. "2.A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together with all its improvements, which parcel of land, as

shown by Exhibits 'K-1' was acquired by way of absolute deed of sale executed by Amrosio Mondog on January 14, 1965. "3.A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as shown by Exhibit 'R', the same was registered in the name of Enrico Pacete and the same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit 'R-1', situated at Musan, Kidapawan, North Cotabato. "4.A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit 'S', and registered in the name of Enrico Pacete. "5.A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlanng, North Cotabato, with an area of 4.9841 hectares and the same is covered by Tax Declaration No. 803 (74) and registered in the name of Enrico Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on September 24, 1962, as shown by Exhibit 'Q-1'. "6.A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962, as shown by Exhibit 'L-1' and which parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato. "7.A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, and also covered by Tax Declaration No. 8607 (74) both in the name of the defendant Enrico L. Pacete which he acquired last October 15,

1962 from Minda Bernardino, as shown by Exhibit 'M-1'. "8.A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 5781(74) in the name of Enrico Pacete and which parcel of land he acquired last September 25, 1962 from Conchita dela Torre, as shown by Exhibit 'P-1'. "9.A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 8716(74) also in the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by Exhibit 'N-1'. "10.A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745(74) in the name of Enrico Pacete, as shown on Exhibit 'O' and which Enrico Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit '01'. LexLib "3.Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering the registration of the same in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato. "4.Ordering likewise the cancellation of Original Certificate of Title No. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan, Mlang, North

Cotabato, and the issuance of a new Transfer Certificate of Title in the joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete. "5.Ordering likewise the cancellation of Original Certificate of Title No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of 12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be registered as their joint property, including the 50 hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del Sur. "6.Ordering the following motor vehicles to be the joint properties of the conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz: "a.Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561; Chassis No. 83920393, and Type, Mcarrier; "b.Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547; Chassis No. 10D1302-C; and Type, Mcarrier; "c.Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GPW-116188; Chassis No. HOCCGPW-1161-88-C; Type, Jeep; "d.Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake; llcd

"e.Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No. KB222-22044; Type, Stake; and "f.Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F13582-K; Type, Stake. "7.Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00 which is the share of the plaintiff in the unaccounted income of the ricemill and corn sheller for three years from 1971 to 1973. "8.Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary equipment of 30% of whatever the plaintiff has recovered as attorney's fees; "9.Declaring the subsequent marriage between defendant Enrico L. Pacete and Clarita de la Concepcion to be void ab initio; and "10.Ordering the defendants to pay the costs of this suit." 4 Hence, the instant special civil action of certiorari. LexLib Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also pointed out by private respondents, the proper remedy of petitioners should have instead been either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule, however, is not inflexible; a petition for certiorari is allowed when the default order is improperly declared, or even when it is properly declared, where grave abuse of discretion attended such declaration. 6 In these exceptional instances, the special civil action of certiorari to declare the nullity of a judgment by default is available. 7 In the case at bench, the default order unquestionably is not legally sanctioned. The Civil Code provides: "Art. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. "In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order

to take care that the evidence for the plaintiff is not fabricated." The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance, reproduced in Article 60 of the Family Code. 9 Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed: "The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not." Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation must "in no case be tried before six months shall have elapsed since the filing of the petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward getting the parties to reconcile. Cdpr The significance of the above substantive provisions of the law is further underscored by the inclusion of the following provision in Rule 18 of the Rules of Court: "Sec. 6.No defaults in actions for annulments of marriage or for legal separation. If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated." llcd

The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are impelled by no less than the State's interest in the marriage relation and its avowed intention not to leave the matter within the exclusive domain and the vagaries of the parties to alone dictate. It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirements aforequoted. WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs. cdphil SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur.

FIRST DIVISION [G.R. No. L-49542. September 12, 1980.] ANTONIO MACADANGDANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents. DECISION MAKASIAR, J p: This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R which reversed the decision of the Court of First Instance of Davao, Branch IX dismissing the action for recognition and support filed by respondent Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be the illegitimate son of petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches the age of majority (p. 47, rec.; p. 10, ROA). The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [p. 198, rec.]). She allegedly had intercourse with petitioner Antonio Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days following the illicit encounter), she gave birth to a baby boy who was named Rolando Macadangdang in baptismal rites held on December 24, 1967 (Annex "A", List of Exhibits). The records also disclose that on April 25, 1972, respondent; (then plaintiff) filed a complaint for recognition and support against petitioner (then defendant) with the Court of First Instance of Davao, Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA). Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim and praying for its dismissal (p. 3, ROA). On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of the parties, an amended complaint was filed by plaintiff on October 17, 1972 (pp. 7, 8 and 9, ROA). In its decision rendered on February 27, 1973, the lower court dismissed the complaint. The decision invoked positive provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA).

On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, rec.). In her appeal, appellant assigned these errors: 1."The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court" (p. 18, rec.); 2."The Honorable Trial Court erred in holding that plaintiffappellant cannot validly question the legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal husband as a party in the instant case" (p. 18, rec.). In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p. 47, rec.) and thus declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.). On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of merit. (p. 56, rec.). Hence, petitioner filed this petition on January 12, 1979. The issues boil down to: 1.Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses Elizabeth Mejias and Crispin Anahaw; and 2.Whether or not the wife may institute an action that would bastardize her child without giving her husband, the legally presumed father, an opportunity to be heard. The crucial point that should be emphasized and should be straightened out from the very beginning is the fact that respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by reason thereof, she and her husband separated. This fact surfaced from the testimony of respondent herself in the hearing of September 21, 1972 when this case was still in the lower court. The pertinent portions of her testimony are thus quoted: "By Atty. Fernandez:

"Q What did you feel as a result of the incident where Antonio Macadangdang used a pill and took advantage of your womanhood? "A I felt worried, mentally shocked and humiliated. "Q If these feelings: worries, mental shock and humiliation, if estimated in monetary figures, how much will be the amount? "A Ten thousand pesos, sir. "Q And because of the incident, what happened to your marriage with Crispin Anahaw? xxx xxx xxx WITNESS: A We separated, sir". (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis supplied). From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given with spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning or interpretation of the word "incident" other than that of the initial contact between petitioner and respondent. Even a layman would understand the clear sense of the question posed before respondent and her categorical and spontaneous answer which does not leave any room for interpretation. It must be noted that the very question of her counsel conveys the assumption of an existing marriage between respondent and her husband. The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot therefore be considered conclusive and binding on this Court. It is based solely on the testimony of respondent which is self-serving. Nothing in the records shows that her statement was confirmed or corroborated by another witness and the same cannot be treated as borne out by the record or that which is based on substantial evidence. Respondent's testimony, by itself, is insufficient without further evidence. It is not even confirmed by her own husband, who was not impleaded. In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings of facts of the Court of Appeals are conclusive on the

parties and on the Supreme Court, unless (1) the conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admission of both appellant and appellee; (6) the findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (9) when the finding of facts of the Court of Appeals is premised on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-Cola Bottling Company of the Philippines, L-22533, 19 SCRA 289 (1967); italics supplied]. Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions to the general rule This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc., supra. In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L46430-31, July 30, 1979), which petitioner aptly invokes, this Court thus emphasized: ". . . But what should not be ignored by lawyers and litigants alike is the more basic principle that the 'findings of fact' described as 'final' or 'conclusive' arethose borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. There are exceptions to the general rule, where we have reviewed the findings of fact of the Court of Appeals . ." (emphasis supplied). The following provisions of the Civil Code and the Rules of Court should be borne in mind: "Art. 255.Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

"Against this presumption, no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. "This physical impossibility may be caused:

twenty days of the three hundred which preceded the birth of the child.

"This physical impossibility may be caused: "[1]By the impotence of the husband; "(1)By the impotence of the husband; "(2)By the fact that the husband and wife were living separately, in such a way that access was not possible; "(3)By the serious illness of the husband. "Art. 256.The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. "Art. 257.Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in article 255, the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purposes of this article, the wife's adultery need not be proved in a criminal case. xxx xxx xxx "Sec. 4.Quasi-conclusive presumptions of legitimacy "(a)Children born after one hundred eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed legitimate. "Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and "(b)The child shall be presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. "(c)Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth above, the child is presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purpose of the rule, the wife's adultery need not be proved in a criminal case. . . ." Rule 131, Rules of Court). Whether or not respondent and her husband were separated would be immaterial to the resolution of the status of the child Rolando. What should really matter is the fact that during the initial one hundred twenty days of the three hundred which preceded the birth of the aforenamed child, no concrete or even substantial proof was presented to establish physical impossibility of access between respondent and her spouse. From her very revealing testimony, respondent declared that she was bringing two sacks of rice to Samal for her children; that her four children by her husband lived in her mother's house in the said town; that her alleged estranged husband also lived in her mother's place (p. 73, rec.: pp. 21 & 22, 64 & 66, t.s.n., Sept. 21, 1972). It should also be noted that even during her affair with petitioner and right after her delivery, respondent went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia Avila (the boy's yaya), the following came out: "[2]By the fact that the husband and the wife were living separately, in such a way that access was not possible; "[3]By the serious illness of the husband;

"QWhy were you taking care of the child Rolando, where was Elizabeth Mejias? "ABecause Elizabeth went to her parents in Samal Davao del Norte for treatment because she had a relapse" (p. 13, t.s.n., of Sept. 21, 1972). From the foregoing and since respondent and her husband continued to live in the same province, the fact remains that there was always the possibility of access to each other. As has already been pointed out, respondent's self-serving statements were never corroborated nor confirmed by any other evidence, more particularly that of her husband. Cdpr The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after March, 1967 when the "incident" or first illicit intercourse between respondent and petitioner took place, and also, seven months from their separation (if there really was a separation). It must be noted that as of March, 1967, respondent and Crispin Anahaw had already four children; hence, they had been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando came more than one hundred eighty 180 days following the celebration of the said marriage and before 300 days following the alleged separation between aforenamed spouses. Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the legitimate son of respondent and her husband. The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner and respondent is another proof that the said child was not of petitioner since, from all indications, he came out as a normal, full term baby. It must be stressed that the child under question has no birth certificate nor any other official record of birth. His birth is attested to merely by oral declarations of witnesses and by a Certificate of Baptism (attached in the List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note again that he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could have been born prematurely. But such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent herself and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which birth was obviously normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for by said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15 days and 2 months of age, respondent left him to the care of the yaya when the

former left for Samal for treatment and returned only in February, 1968 (pp. 3032, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said that the child was a full-term baby at birth, normally delivered, and raised normally by the yaya. If it were otherwise or if he were born prematurely, he would have needed special care like being placed in an incubator in a clinic or hospital and attended to by a physician, not just a mere yaya. These all point to the fact that the baby who was born on October 30, 1967 or 7 months from the first sexual encounter between petitioner and respondent was conceived as early as January, 1967. How then could he be the child of petitioner? In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified but not the veracity of the states or declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained in the certificate that concern the relationship of the person baptized. Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law. The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120 days of the 300 which preceded the birth of the child. This presumption is actually quasiconclusive and may be rebutted or refuted by only one evidence the physical impossibility of access between husband and wife within the first 120 days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by any of these: 1.Impotence of the husband; 2.Living separately in such a way that access was impossible; and 3.Serious illness of the husband. This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during the period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the

presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. I, p. 513 citing Bevilaqua, Familia. 311). The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable doubt that there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary; where sexual intercourse is presumed or proved, the husband must be taken be the father of the child (Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341). To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to the wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance which makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a circumstance to corroborate proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408). Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the physical inability to perform the act of sexual intercourse. In respect of the impotency of the husband of the mother of a child, to overcome the presumption of legitimacy based on conception or birth in wedlock or to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and convincing, irresistible or positive (S.C. Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50). The separation between the spouses must be such as to make sexual access impossible. This may take place when they reside in different countries or provinces, and they have never been together during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison regulations (1 Manresa 492500). The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his wife; such as, when because of a sacroiliac injury, he was placed in a plaster cast, and it was inconceivable to have sexual intercourse without the most severe pain (Tolentino, citing Commissioner vs. Kotel, 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced

temporary or permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet 352).

Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering from tuberculosis can do the carnal act even in the most crucial stage of health because then they seemed to be more inclined to sexual intercourse. The fact that the wife had illicit intercourse with a man other than her husband during the initial period, does not preclude cohabitation between said husband and wife. Significantly, American courts have made definite pronouncements or rulings on the issues under consideration. The policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the presumption that a child so born is the child of the husband and is legitimate even though the wife was guilty of infidelity during the possible period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y.S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18, 19 & 20). So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of procreation or was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife's pregnancy (10 C.J.S. p. 20). LibLex The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 Ala. App. 430) and this includes children born after the separation [10 C.J.S. pp. 23: 24; italics supplied]. It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress has been adopted for two solid reasons. First, in a fit of anger or to arouse jealousy in the husband, the wife may have made this declaration (Powell State, 95 N.E., 660). Second, the article is established as a guaranty in favor of the children whose condition should not be under the mercy of the passions of their parents. The husband whose honor if offended, that is, being aware of his wife's adultery, may obtain

from the guilty spouse by means of coercion, a confession against the legitimacy of the child which may really be only a confession of her guilt. Or the wife, out of vengeance and spite, may declare the child as not her husband's although the statement be false. But there is another reason which is more powerful, demanding the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being possible that it be the husband himself (Manresa, Vol. 1, pp. 503-504). Hence, in general, good morals and public policy require that a mother should not be permitted to assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77). The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor merely upon evidence that no actual act of sexual intercourse occurred between husband and wife at or about the time the wife became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 168, 191 N.E. 100). With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband (Tolentino citing 1 Vera 170; 4 Borja 23-24). It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and scandalous, not only because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642). In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and mother is not admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access to his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36). At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314).

The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only in a direct suit brought for the purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied). Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the identity of the child (La Eloi vs. Mader, 1 Rob. 581, 38 Am. D. 192). Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory provisions of viating incompetency on the ground of interest, or the fact that the conception was antenuptial. The rule is said to be founded in decency, morality and public policy (Wallace vs. Wallace, 137 Iowa 37, 114 N.W. 527, 14 L.R.A. [N.S] 544, Am. St. Rep. 253, 15 Ann. Cas. 761, Am. Jur. 26). cdphil From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent man, having had four children with his wife; that even if he and respondent were even living separately (which the latter failed to prove anyway) and assuming, for argument's sake, that they were really separated, there was all the possibility of physical access to each other considering their proximity to each other and considering further that respondent still visited and recuperated in her mother's house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have any serious illness or any illness whatsoever which would have rendered him incapable of having sexual act with his wife. No substantial evidence whatsoever was brought out to negate the aforestated facts. Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer" after her flings. And she deliberately did not include nor present her husband in this case because she could not risk her scheme. She had to be certain that such scheme to bastardize her own son for her selfish motives would not be thwarted. This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the illegitimate child of petitioner. From all indications, respondent has paraded herself as a woman of highly questionable character. A married woman who, on first meeting, rides with a total stranger who is married towards nightfall, sleeps in his house in the presence of his children, then lives with him after their initial sexual contact the atmosphere for which she herself

provided is patently immoral and hedonistic. Although her husband was a very potent man, she readily indulged in an instant illicit relationship with a married man she had never known before. Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after his birth, she left him in the care of a yaya for several months. This is not the normal instinct and behavior of a mother who has the safety and welfare of her child foremost in her mind. The filing of this case itself shows how she is capable of sacrificing the psycho-social future (reputation) of the child in exchange for some monetary consideration. This is blatant shamelessness. It also appears that her claim against petitioner is a disguised attempt to evade the responsibility and consequence of her reckless behavior at the expense of her husband, her illicit lover and above all her own son. For this Court to allow, much less consent to, the bastardization of respondent's son would give rise to serious and far-reaching consequences on society. This Court will not tolerate scheming married women who would indulge in illicit affairs with married men and then exploit the children born during such immoral relations by using them to collect from such moneyed paramours. This would be the vilest form of wrecking the stability of two families. This would be a severe assault on morality. And as between the paternity by the husband and the paternity by the paramour, all the circumstances being equal, the law is inclined to follow the former; hence, the child is thus given the benefit of legitimacy. Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus: LLphil "Art. 220.In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or fact, leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over the children, and the validity of defense for any member of family in case of unlawful aggression." WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSE AND SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.

SO ORDERED. Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.