[No. 17014.

August 11, 1921]

MARIANO B. ARROYO, plaintiff and appellant, vs. DOLORES C.
VAZQUEZ DE ARROYO, defendant and appellee.
1.HUSBAND AND WIFE; SEPARATE MAINTENANCE OF WIFE.
Where the wife is forced to leave the marital home by illtreatment from her husband, he can be compelled to
provide for her separate maintenance, without regard to
whether a cause for divorce exists or not.
2.ID.; ID.; NECESSITY FOR SEPARATION.Nevertheless, the
interests of both parties as well as of society at large
require that the courts should move with caution in
enforcing the duty to provide for the separate
maintenance of the wife, for this step involves a
recognition of the anomalous de facto separation of the
spouses. From this consideration it follows that provision
should not be made for separate maintenance in favor of
the wife unless it appears that the continued cohabitation
of the pair has become impossible and separation
necessary from the fault of the husband.
3.ID.; ACTION BY HUSBAND FOR RESTITUTION OF CONJUGAL
RIGHTS; WIFE ADMONISHED TO RETURN.In an action by
the husband against a wife to obtain a restitution of
conjugal rights, the court entered a judicial declaration to
the effect that the wife had absented herself from the
marital home without sufficient cause, and she was
admonished that it was her duty to return. The court,
however, refrained from making an order absolute
requiring her to return.
APPEAL from a judgment of the Court1 of First Instance of
Iloilo. Camus, J.
The facts are stated in the opinion of the court.
Fisher & DeWitt for appellant.
Powell & Hill for appellee.

STREET, J.:
Mariano B. Arroyo and Dolores C. Vazquez de Arroyo were
united in the bonds of wedlock by marriage in the year 1910,
and since that date, with a few short intervals of separation,
they have lived together as man and wife in the city of Iloilo
until July 4, 1920, when the wife went away from their
common home with the intention of living
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Arroyo vs. Vazquez de Arroyo
thenceforth separate from her husband. After efforts had
been made by the husband without avail to induce her to
resume marital relations, this action was initiated by him to
compel her to return to the matrimonial home and live with
him as a dutiful wife. The defendant answered, admitting the
fact of marriage, and that she had left her husband's home
without his consent; but she averred by way of defense and
cross-complaint that she had been compelled to leave by cruel
treatment on the part of her husband. Accordingly she in
turn prayed for affirmative relief, to consist of (1) a decree of
separation; (2) a liquidation of the conjugal partnership; (3)
and an allowance for counsel fees and permanent separate
maintenance. Upon hearing the cause the lower court gave
judgment in favor of the defendant, authorizing her to live
apart from her husband, granting her alimony at the rate of
P400 per month, and directing that the plaintiff should pay
to the defendant's attorney the sum of Pl,000 for his services
to defendant in the trial of the case. The plaintiff thereupon
removed the case with the usual formalities by appeal to this
court.
The trial judge, upon consideration of the evidence before
him, reached the conclusion that the husband was more to
blame than his wife and that his continued ill-treatment of
her furnished sufficient justification for her abandonment of
1

the conjugal home and the permanent breaking off of marital

relations with him. We have carefully examined and weighed
every line of the proof, and are of the opinion that the
conclusion stated is wholly untenable. The evidence shows
that the wife is afflicted with a disposition of jealousy
towards her husband in an aggravated degree; and to this
cause are chiefly traceable without a doubt the many
miseries that have attended their married life. In view of the
decision which we are to pronounce nothing will be said in
this opinion which will make the resumption of married
relations more difficult to them or serve as a reminder to
either of the mistakes
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56

PHILIPPINE REPORTS
ANNOTATED
Arroyo vs. Vazquez de Arroyo

of the past; and we prefer to record the fact that so far as the
proof in this record shows neither of the spouses has at any
time been guilty of conjugal infidelity, or has given just cause
to the other to suspect illicit relations with any person. The
tales of cruelty on the part of the husband towards the wife,
which are the basis of the cross-action, are in our opinion no
more than highly colored versions of personal wrangles in
which the spouses have allowed themselves from time to time
to become involved and would have little significance apart
from the morbid condition exhibited by the wife. The
judgment must therefore be recorded that the abandonment
by her of the marital home was without sufficient
justification in fact.
In examining the legal questions involved, it will be found
convenient to dispose first of the defendant's cross-complaint.
To begin with, the obligation which the law imposes on the
husband to maintain the wife is a duty universally
recognized in civil society and is clearly expressed in articles
142 and 143 of the Civil Code. The enforcement of this

obligation by the wife against the husband is not conditioned

upon the procurance of a divorce by her, nor even upon the
existence of a cause for divorce. Accordingly it has been
determined that where the wife is forced to leave the
matrimonial abode and to live apart from her husband, she
can, in this jurisdiction, compel him to make provision for her
separate maintenance (Goitia vs. Campos Rueda, 35 Phil.,
252); and he may be required to pay the expenses, including
attorney's fees, necessarily incurred in enforcing such obligation. (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.)
Nevertheless, the interests of both parties as well as of
society at large require that the courts should move with
caution in enforcing the duty to provide for the separate
maintenance of the wife, for this step involves a recognition
of the de factoseparation of the spousesa state which is
abnormal and fraught with grave danger to all
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Arroyo vs. Vazquez de Arroyo
concerned. From this consideration it follows that provision
should not be made for separate maintenance in favor of the
wife unless it appears that the continued cohabitation of the
pair has become impossible and separation necessary from
the fault of the husband.
In Davidson vs. Davidson, the Supreme Court of Michigan,
speaking through the eminent jurist. Judge Thomas M.
Cooley, held that an action for the support of the wife
separate from the husband will only be sustained when the
reasons for it are imperative (47 Mich., 151). That imperative
necessity is the only ground on which such a proceeding can
be maintained also appears from the decision in
Schindel vs.Schindel (12 Md., 294).
In the State of South Carolina, where judicial divorces
have never been procurable on any ground, the Supreme
2

Court fully recognizes the right of the wife to have provision

for separate maintenance, where it is impossible for her to
continue safely to cohabit with her husband; but the same
court has more than once rejected the petition of the wife for
separate maintenance where it appeared that the husband's
alleged cruelty or ill-treatment was provoked by the wife's
own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan.
[S. Car.], 197; 16 Am. Dec, 597; Boyd vs.Boyd, Har. Eq. [S.
Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the
judgment of the English Ecclesiastical Court in a case where
cruelty on the part of the husband was relied upon to secure
a divorce for the wife, made use of the following eloquent
words,which are perhaps even more applicable in a
proceeding for separate maintenance in a jurisdiction where,
as here, a divorce cannot be obtained except on the single
ground of adultery and this, too, after the conviction of the
guilty spouse in a criminal prosecution for that crime. Said
he:
"That the duty of cohabitation is released by the cruelty of one
of the parties is admitted, but the question occurs, What is cruelty?
* * *
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58

PHILIPPINE REPORTS
ANNOTATED
Arroyo vs. Vazquez de Arroyo

"What merely wounds the mental feelings is in few cases to be

admitted where they are not accompanied with bodily injury,
either actual or menaced. Mere austerity of temper, petulance of
manners, rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion, if they do not
threaten bodily harm, do not amount to legal cruelty: they are high
moral offences in the marriage-state undoubtedly, not innocent
surely in any state of life, but still they are not that cruelty against

which the law can relieve. Under such misconduct of either of the
parties, for it may exist on the one side as well as on the other, the
suffering party must bear in some degree the consequences of an
injudicious connection; must subdue by decent resistance or by
prudent conciliation; and if this cannot be done, both must suffer
in silence. * * *
"The humanity of the court has been loudly and repeatedly
invoked. Humanity is the second virtue of courts, but undoubtedly
the first is justice. If it were a question of humanity simply, and of
humanity which confined its views merely to the happiness of the
present parties, it would be a question easily decided upon first
impressions. Every body must feel a wish to sever those who wish
to live separate from each other, who cannot live together with any
degree of harmony, and consequently with any degree of
happiness; but my situation does not allow me to indulge the
feelings, much less the first feelings of an individual. The law has
said that married persons shall not be legally separated upon the
mere disinclination of one or both to cohabit together. * * *
"To vindicate the policy of the law is no necessary part of the
office of a judge; but if it were, it would not be difficult to show that
the law in this respect has acted with its usual wisdom and
humanity with that true wisdom, and that real humanity, that
regards the general interests of mankind. For though in particular
cases the repugnance of the law to dissolve the obligations of
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Arroyo vs. Vazquez de Arroyo
monial cohabitation may operate with great severity upon
individual, yet it must be carefully remembered that the general
happiness of the married life is secured by its indissolubility.
When people understand that they must live together, except for a
very few reasons known to the law, they learn to soften by mutual
3

accommodation that yoke which they know they cannot shake off;
they become good husbands and good wives from the necessity of
remaining husbands and wives; for necessity is a powerful master
in teaching the duties which it imposes. * * * In this case, as in
many others, the happiness of some individuals must be sacrificed
to the greater and more general good." (Evans vs.Evans, 1 Hag.
Con., 35; 161 Eng. Reprint, 466, 467.)

In the light of the considerations stated, it is obvious that

the cross-complaint is not well founded and none of the relief
sought therein can be granted.
The same considerations that require the dismissal of the
cross-complaint conclusively prove that the plaintiff, Mariano
B. Arroyo, has done nothing to forfeit his right to the marital
society of his wife and that she is under an obligation, both
moral and legal, to return to the common home and cohabit
with him. The only question which here arises is as to the
character and extent of the relief which may be properly
conceded to him by judicial decree.
The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory
part of the complaint that he is entitled to a permanent
mandatory injunction requiring the defendant to return to
the conjugal home and live with him as a wife according to
the precepts of law and morality. Of course if such a decree
were entered, in unqualified terms, the defendant would be
liable to attachment for contempt, in case she should refuse
to obey it; and, so far as the present writer is aware, the
question is raised for the first time in this jurisdiction
whether it is competent for the court to make such an order.
60

60

PHILIPPINE REPORTS
ANNOTATED
Arroyo vs. Vazquez de Arroyo

Upon examination of the authorities we are convinced that

it is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and
render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order, enforcible
by process of contempt, may be entered to compel the
restitution of the purely personal right ofconsortium. At best
such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and the
experience of those countries where the courts of justice have
assumed to compel the cohabitation of married people shows
that the policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights at the
instance of either husband or wife; and if the facts were
found to warrant it that court would make a mandatory
decree, enforcible by process of contempt in case of
disobedience, requiring the delinquent party to live with the
other and render conjugal rights. Yet this practice was
sometimes criticised even by the judges who felt bound to
enforce such orders, and in Weldon vs. Weldon (9 P. D., 52),
decided in 1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of the High Court of
Justice, expressed his regret that the English law on the
subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the
decree for the restitution of conjugal rights in England, could
be obtained by the injured spouse, but could not be enforced
by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still be
procured, and in case of disobedience may serve in appro4

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Arroyo vs. Vazquez de Arroyo
priate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only
one court, so far as we can discover, has ever attempted to
make a peremptory order requiring one of the spouses to live
with the other; and that was in a case where a wife was
ordered to follow and live with her husband, who had
changed his domicile to the City of New Orleans. The
decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was
based on a provision of the Civil Code of Louisiana similar to
article 56 of the Spanish Civil Code. It was decided many
years ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the
American Union the idea of enforcing cohabitation by process
of contempt is rejected. (21 Cyc, 1148.)
In a decision of January 2, 1909, the supreme court of
Spain appears to have affirmed an order of theAudiencia
Territorial de Valladolid requiring a wife to return to the
marital domicile, and in the alternative, upon her failure to
do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband,
as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property
which she had brought to the marriage. (113 Jur. Civ., pp. 1,
11.) But it does not appear that this order for the return of
the wife to the marital domicile was sanctioned by any other
penalty than the consequences that would be visited upon
her in respect to the use and control of her property; and it
does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for
contempt.

We are therefore unable to hold that Mariano B. Arroyo in

this case is entitled to the unconditional and absolute order
for the return of the wife to the marital domicile, which is
sought in the petitory part of the complaint; though he is,
without doubt, entitled to a judicial declaration that his wife
has presented herself without sufficient cause and that it is
her duty to return.
Therefore, reversing the judgment appealed from, in
respect both to the original complaint and the cross-bill, it is
declared that Dolores Vasquez de Arroyo has absented
herself from the marital home without sufficient cause; and
she is admonished that it is her duty to return. The plaintiff
is absolved from the cross-complaint, without special
pronouncement as to costs of either instance. So ordered.
Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ.,
concur.

[No. 4089. January 12, 1909.]

ARTURO PELAYO, plaintiff and appellant, vs. MARCELO
LAURON ET AL., defendants and appellees.
1. 1.RECIPROCAL OBLIGATIONS OF HUSBAND AND
WIFE;SUPPORT.Among the reciprocal obligations
existing between a husband and wife is that of support,
which obligation is established by law
1. 2.ID. ; SUPPORT OF STRANGERS.The law does not
compel any person to support a stranger unless such
person bound himself to do so by an express contract.
1. 3.ID., SUPPORT OF WIFE.Where a husband whom the
law compels to support his wife is living, the father and
mother-in-law of the latter are under no liability to
provide for her.

APPEAL from a judgment of the Court of First Instance of

Cebu. Wislizenus, J.
The facts are stated in the opinion of the court.
J. H. Junquera, for appellant.
Filemon Sotto, for appellees.
TORRES, J.:
On the 23d of November, 1906, Arturo Pelayo, a physicianresiding in Cebu, filed a complaint against Marcelo Lauron
and Juana Abella setting forth that on or about the 13th of
October of said year, at night, the plaintiff was
454

454

PHILIPPINE REPORTS
ANNOTATED
Pelayo vs. Lauron.

called to the house of the defendants, situated in San Nicolas,

and that upon arrival he was requested by them to render
medical assistance to their daughter-in-law who was about to
give birth to a child; that therefore, and after consultation
with the attending physician, Dr. Escao, it was found
necessary, on account of the difficult birth, to remove the
ftus by means of forceps which operation was performed by
the plaintiff, who also had to remove the afterbirth, in which
service he was occupied until the following morning, and that
afterwards, on the same day, he visited the patient several
times; that the just and equitable value of the services
rendered by him was P500, which the defendants refuse to
pay without alleging any good reason therefor; that for said
reason he prayed that judgment be entered in his favor as
against the defendants, or any of them, for the sum of P500
and costs, together with any other relief that might be
deemed proper.
In answer to the complaint counsel for the defendants
denied all of the allegations therein contained and alleged as
a special defense, that their daughter-in-law had died in
consequence of the said childbirth, and that when she was
alive she lived with her husband independently and in a
separate house without any relation whatever with them,
and that, if on the day when she gave birth she was in the
house of the defendants, her stay there was accidental' and
due to fortuitous-circumstances; therefore, he prayed that the
defendants be absolved of the complaint with costs against
the plaintiff.
The plaintiff demurred to the above answer, and the court
below sustained the demurrer, directing the defendants, on
the 23d of January, 1907, to amend their answer. In
compliance with this order the defendants presented, on the
same date, their amended answer, denying.each and every
one of the allegations contained in the complaint, and
requesting that the same be dismissed with costs.
6

As a result of the evidence adduced by both parties,

judgment was entered by the court below on the 5th of April,
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VOL. 12, JANUARY 12,

1909.
Pelayo vs. Lauron.

455

1907, whereby the -defendants were absolved from the

former complaint, on account of the lack of sufficient
evidence to establish a right of action against the defendants,
with costs against the plaintiff, who excepted to the said
judgment and in addition moved for a new trial on the
ground that the judgment was contrary to law; the motion
was overruled and the plaintiff excepted and in due course
presented the corresponding bill of exceptions. The motion of
the defendants requesting that the declaration contained in
the judgment that the defendants had demanded the
professional services of the plaintiff be eliminated therefrom,
for the reason that, according to the evidence, no such
request had been made, was also denied, and to the decision
the defendants excepted.
Assuming that it is a real fact acknowledged by the
defendants, that the plaintiff, by virtue of having been sent
for by the former, attended as physician and rendered
professional services to a daughter-in-law of the said
defendants during a difficult and laborious childbirth, in
order to decide the claim of the said physician regarding the
recovery of his fees, it becomes necessary to decide who is
bound to pay the bill, whether the father and mother-in-law
of the patient, or the husband of the latter.
According to article 1089 of the Civil Code, obligations are
created by law, by contracts, by quasi-contracts, and by illicit
acts and omissions or by those in which any kind of fault or
negligence occurs.
Obligations arising from law are not presumed. Those
expressly determined in the code or in special laws, etc., are

the only demandable ones. Obligations arising from contracts

have legal force between the contracting parties and must be
fulfilled in accordance with their stipulations. (Arts. 1090
and 1091.)
The rendering of medical assistance in case of illness is
comprised among the mutual obligations to which spouses
are bound by way of mutual support. (Arts. 142 and 143.).
456

456

PHILIPPINE REPORTS
ANNOTATED
Pelayo vs. Lauron.

If every obligation consists in giving, doing, or not doing

something (art. 1088), and spouses are mutually bound to
support each other, there can be no question but that, when
either of them by reason of illness should be in need of
medical assistance, the other is under the unavoidable
obligation to furnish the necessary services of a physician in
order that health may be restored, and he or she may be
freed from the sickness by which life is jeopardized; the party
bound to furnish such support is therefore liable for all
expenses, including the fees of the medical expert for his
professional services. This liability originates from the abovecited mutual obligation which the law has expressly
established between the married couple.
In the face of the above legal precepts it is unquestionable
that the person bound to pay the fees due to the plaintiff for
the professional services that he rendered to the daughter-inlaw of the defendants during her childbirth is the husband of
the patient and not her father and motherin-law, the
defendants herein. The fact that it was not the husband who
called the plaintiff and requested his assistance for his wife
is no bar to the fulfillment of the said obligation, as the
defendants, in view of the imminent danger to which the life
of the patient was at that moment exposed, considered that
medical assistance was urgently needed, and the obligation
7

of the husband to furnish his wife with the indispensable

services of a physician at such critical moments is specially
established by the law, as has been seen, and compliance
therewith is unavoidable; therefore, the plaintiff, who
believes that he is entitled to recover his fees, must direct his
action against the husband who is under obligation to
furnish medical assistance to his lawful wife in such an
emergency.
From the foregoing it may readily be understood that it
was improper to have brought an action against the
defendants simply because they were the parties who called
the plaintiff and requested him to assist the patient during
her difficult confinement, and also, possibly, because they
were her father and mother-in-law and the sickness occurred
in
457

VOL. 12, JANUARY 12,

1909.
Pelayo vs. Lauron.

457

their house. The defendants were not, nor are they now,
under any obligation by virtue of any legal provision, to pay
the fees claimed, nor in consequence of any contract entered
into between them and the plaintiff from which such
obligation might have arisen.
In applying the provisions of the Civil Code in an action
for support, the supreme court of Spain, while recognizing
the validity and efficiency of a contract to furnish support
wherein a person bound himself to support another who was
not his relative, established the rule that the law does impose
the obligation to pay for the support of a stranger, but as the
liability arose out of a contract, the stipulations of the
agreement must be upheld. (Decision of May 1.1, 1897.)
Within the meaning of the law, the father and motherinlaw are strangers with respect to the obligation that
devolves upon the husband to provide support, among which

is the furnishing of medical assistance to his wife at the time

of her confinement; and, on the other hand, it does not
appear that a contract existed between the defendants and
the plaintiff physician, for which reason it is obvious that the
former can not be compelled to pay fees which they are under
no liability to pay because it does not appear that they
consented to bind themselves.
The foregoing suffices to demonstrate that the first and
second errors assigned to the judgment below are unfounded,
because, if the plaintiff has no right of action against the
defendants, it is needless to declare whether or not the use of
forceps is a surgical operation.
Therefore, in view of the considerations hereinbefore set
forth, it is our opinion that the judgment appealed from
should be affirmed with the costs against the appellant. So
ordered.
Mapa and Tracey, JJ.,concur.
Arellano, C. J., andCarson, J., concur in the result.
Willard, J., dissents.
Judgment affirmed.