LEGAL SEPARATION AND DIVORCE

Manila, December 29, 1889.

By direction of Her Majesty's Government, until further order, titles 4 and 12
of the Civil Code, extended to these Islands by royal decree of July 31 last,
published in the Gazette of this city of the 17th of November last, are
suspended in this Archipelago.

G.R. No. 1056

AGUEDA BENEDICTO, plaintiff-appellee, vs. ESTEBAN DE LA
RAMA, defendant-appellant.

The proper authorities will issue the necessary orders to the end that in lieu
of the two titles so suspended the former law may continue in force.

This is an action for divorce. The complaint, which was filed on October 29,
1901, alleged, as the grounds therefor, abandonment and adultery. The
answer charged the plaintiff with adultery, denied the adultery imputed to the
defendant, and asked for a divorce. Judgment was rendered on July 5, 1902,
in favor of the plaintiff, granting her divorce and 81,042.76 pesos as her
share of the conjugal property. The defendant excepted to the judgment and
moved for a new trial on the ground that the facts were not justified by the
evidence. This motion was denied, and the defendant excepted. The record
before us contains all the evidence received at the trial.

This order will be communicated and published.

WEYLER.
This order purports to have been issued by the governor-general by order of
the Government of Madrid, and although it is stated in the Compilacion
Legislativa de Ultramar (vol. 14, p. 2740) that no decree of this kind was ever
published in the Gaceta de Madrid and that a copy thereof could not be
obtained in any governmental office, yet we can not assume that none was
ever issued.

(1) The first question which we find it necessary to decide is whether or not
the Courts of First Instance now have jurisdiction of divorce cases, and if
they have, on what law it is based.

Sanchez Roman says: "By reason of the lack of that preparation which was
proper in a matter of such great importance, it seems, according to reports
which merit a certain amount of credit (for no order has ever been published
which reveals it), that the Government of the Philippines, after taking the
opinion of the audiencia of Manila, consulted the colonial office concerning
the suspension of titles 4 and 12 of book 1. This opinion was asked in
respect to title 4 on account of certain class influences which were strongly
opposed to the application of the formula of marriage which gave some slight
intervention to the authorities of the State through the municipal judge or his
subtitutes in the celebration of the canonical marriage. As to title 12, the
opinion was asked by reason of the fact that there was no such officer has
municipal judge who could take charge of the civil registry." (2 Derecho Civil,
p. 64.)

The court below assumed that the provisions of the Civil Code relating to
divorce, contained in title 4 of book 1, are still in force. In this we think there
was error.
By the roval decree of July 31, 1889, the Civil Code as it existed in the
Peninsula was extended to the Philippines. The "cumplase" of the governorgeneral was affixed to this decree on September 12, 1889. The Code was
published in the Gaceta de Manila on November 17, 1889, and took effect as
a law on December 8, 1889. On December 31, 1889, the following order was
published in the Gaceta de Manila:
GENERAL GOVERNMENT OF THE PHILIPPINES,

Moreover, the power of the governor-general, without such order to suspend

the operation of the Code, was well settled. A royal order so stating was

SECRETARY'S OFFICE, BUREAU NO. 2,

issued in Madrid on September 19, 1876, and with the cumplase of the
governor-general published in theGaceta de Manila on November 15, 1876.

The canon law, which the ecclesiastical courts administered both in Spain
and here, had not as such any binding force outside of the church. However,
any part of the canon law which by proper action of the civil authorities had
become a civil law stood upon the same footing as any other law of Spain.
This happened in the case of the decree of the council of Trent. That those
decrees have in Spain the force of a civil law is well settled. "The decrees of
the council of Trent have in Spain force of law" (1 Practica General Florense,
Zuniga, 260). In the preface to the Law of Civil Marriage of 1870, its author,
Montero Rios, says: "Philip II accepting as law of the State by royal cedula
dated in Madrid the 12th of July, 1554, the decrees of the council of Trent,"
etc. This royal cedula of Philip II was brought forward into the Novisima
Recopilacion and is now Law 13, title 1, book 1, thereof. The same thing is
declared in article 75 of the present Civil Code, which is as follows: "The
requisites, form, and solemnities for the celebration of canonical marriages
shall be governed by the provisions of the Catholic Church and of the holy
council of Trent, accepted as laws of the Kingdom." It may be doubted,
notwithstanding, if these decrees, even if considered as extended to the
Philippines and in force here, furnish any aid in the solution of the question.
The canonists hold that they do declare adultery to be a ground for divorce (2
Procedimientos Eclesiasticos, Cadena, p. 211). This is, however, more by
deduction than otherwise. The causes for divorce are nowhere distinctly
stated therein. The seventh canon of the twenty-fourth session (November
11, 1563), relied upon by the ecclesiastical writers, does not say that adultery
is a ground for a separation; it simply says that it is not a ground for a divorce
from the bond of matrimony. The eight canon of the same session, while it
declares that the church may direct the separation of the spouses for many
causes, does not state what those causes are. The laws of the church which
do state what these causes are have not the force of the civil laws.

It was suggested at the argument that this order of the suspension was
inoperative because it did not mention the book of the Code in which the
suspended titles 4 and 12 were to be found. The Civil Code contains four
books. All of them except the third contain a title numbered 4, and the first
and fourth contain a title numbered 12. Title 4 of book 2 deals with rights of
property in water and mines and with intelectual property. Title 4 of book 4
relates to the contract of purchased and sale, and title 12 to insurance and
other contracts of the class. There is no such intimate relation between these
2 titles of this book has between titles 4 and 12 of book 1, the one relating as
it does to marriage and divorce and the other to the civil registry. The history
of the Law of Civil Marriage of 1870 is well known. As a consequence of the
religious liberty proclaimed in the constitution of 1869 the whole of the law
was in force in the Peninsula. But that basis was wanting in these Islands,
and prior to the promulgation of the Civil Code in 1889 no part of the law was
in force here, except articles 44 to 78, which were promulgated in 1883. Of
these articles those numbered 44 to 55 are found in title 4, but they relate
merely to the rights and obligations of husband and wife and do not touch the
forms of marriage nor the subject of divorce. If these provisions of the Civil
Code on these subjects could be suspended by the certain class influences
mentioned by Sanchez Roman, the only marriages in the Islands would be
canonical and the only courts competent to declare a divorce would be
ecclesiastical. There can be no doubt but that the order of suspension refers
to titles 4 and 12 of book 1, and it has always been so understood. It follows
that articles 42 to 107 to the Civil Code were not in force here as law on
August 13, 1898, and therefore are not now.

The Decretal law of December 6, 1868, abolishing in the Peninsula the

special jurisdictions, was extended to the Philippines by a royal order of
February 19, 1869, which was published in the Gaceta de Manila on June 2,
1869. That Decretal Law contained the following provision:

While General Orders, No. 68, promulgated by the Military Government on

December 18, 1899, treats of marriage and nullity of marriage, it says
nothing about divorce. To find the law application to this subject resort must
be had to the legislation relating thereto in force in the Islands prior to 1889.
It seems necessary to ascertain in the first place what laws on the subject
were in force in the Peninsula and afterwards if any of them had been
extended to the Philippines.

The ecclesiastical courts shall continue to take cognizance of matrimonial

and eleemosynary causes and of ecclesiastical offenses in accordance with
the provisions of the canon laws. They shall also have jurisdiction over
causes of divorce and annulment of marriage as provided by the holy council

of Trent; but incidents with respect to the deposit of a married woman,

alimony, suit money, and other temporal affairs shall pertain to the ordinary
courts.

crime of fornication and the other enter into the order in this manner, a
separation results which may properly be called divorce, but it must be made
by order of the bishop or some other of the prelates of holy church who have
authority therefor. Furthermore, if the wife offends her husband by the crime
of fornication or adultery, this is another reason which we say may properly
be a ground for divorce. The accusation is to be brought before the judge of
the holy church and proof made of the fornication or adultery, as set forth in
the preceding title. The same would result should one of the spouses commit
spiritual fornication by becoming a heretic or a Moor or a Jew, if he or she
should refuse to eschew this evil. And the reason why this separation which
is authorized by reason of these two things, either religion or fornication, is
properly called divorce, in distinction from separation which results from other
impediments, is that, although it separates those who were married as stated
in this law and the preceding one, the marriage nevertheless subsists, and
thus it is that neither one of them can contract a second marriage at any time
excepting in the case of a separation granted by reason of adultery, in which
case the surviving spouse may remarry after the death of the other.

This did not have the effect of making the canons mentioned therein civil
laws. It simply declared that the church might try the cases referred to
according to its own laws in its own courts and that the State would enforce
the decrees of the latter.
It is not necessary, however, to decide this question as to the decrees of the
council of Trent, for the partidas do contain provisions relating to the subject
of divorce. Law 1, title 10, of the fourth partida, defines divorce as follows:
Divortium, in Latin, means, in common speech, separation (departimiento),
and is the means by which the wife is separated from the husband, and the
husband from the wife, on account of some impediment existing between
them, when it is properly proved in court. And whoever separates the parties
in any other way, doing it by force, or contrary to law, will go against that
which is said by Jesus Christ, in the Gospel: "those whom God path joined
together, let no man put asunder." But when the spouses are separated by
law, it is not then considered that man separates them, but the written law,
and the impediment existing between them. And divortio takes its name from
the separation of the wills of man and woman, which are in a contrary state
when separated, to what they were when the parties were united.

It will be seen from these laws that the only ground for divorce now of
importance here is adultery.
Law 2, title 9, of the fourth partida, provides in part as follows:
Husband and wife may accuse each other, in another way than those
mentioned in the preceding law; and that is for adultery. And if the accusation
be made with a view to separating the parties from living together, or from
having any commerce with each other, no other person but the spouses
themselves can make an accusation for such a cause, and it ought to be
made before the bishop or the ecclesiastical judge (official) either by the
parties themselves or their attorneys. . . . And in all the various ways in which
the husband can accuse the wife, mentioned in these two laws, the wife may
in like manner, according to holy church, accuse him, if she choose; and she
ought to be heard, as he is himself." While Law 2 of title 10 seems to speak
only of the adultery of the wife, this clearly gives the wife the right to accuse
the husband of adultery for the purpose of securing a separation. So does
Law 13, title 9, partida 4.

Law 2 of the same title is as follows:

Properly speaking there are two forms of separation to which the name of
divorce may be given and two reasons therefor; there are many reasons
which bring about the separation of those who appear to be married but are
not so by reason of some impediment between them. Of these two reasons,
one is religion and the other the sin of fornication. Religion authorizes divorce
on this ground: That if any persons there be lawfully married, there not
existing between them any of the impediments upon which the marriage
might be dissolved, if either of them after they have been carnally joined
should desire to take holy orders and the other should grant permission, the
one desiring to remain in the world promising to live a life of chastity and
being so aged that none can suspect that such spouse will be guilty of the

The divorce did not annul the marriage. Law 3, title 2, partida 4, says, among
other things, the following:

And as to all matters not provided for by the laws of this compilation, the laws
of the compilations and the partidas of these Kingdom of Castile shall be
followed in the decision of causes in accordance with the following law. (Law
1.)

Yet, with all this, they may separate, if one of them, commit the sin of
adultery, or join any religious order, with the consent of the other, after they
have known each other carnally. And notwithstanding they separate for one
of these causes, no longer to live together, yet the marriage is not dissolved
on that account." Law 4, title 10, partida 4, is to the same effect. Law 7, title
2, partida 4, is in part as follows:

We order and command that in all causes, suits, and litigations in which the
laws of this compilation do not provide for the manner of their decision, and
no such provision is found in special enactments passed for the Indies and
still unrepealed, or those which may hereafter be so enacted, that then the
laws of this our Kingdom of Castile shall be followed, in conformity with the
law of Toro, both with respect to the procedure to be followed in such cases,
suits, and litigations, and with respect to the decision of the same on the
merits. (Law 2.)

So great is the tie and force of marriage that when legally contracted it can
not be dissolved, notwithstanding one of the parties should turn heretic or
Jew or Moor or should commit adultery. Nevertheless, for any of these
causes they may be separated by a judgment of the church, so as to live no
longer together, nor to have any carnal connection with one another,
according to what is said in the title on the clergy, in the law which begins
with the words "otorgandose algunos."

This law of Toro; designating the order in which the different bodies of law
should be applied, is now found in book 3, title 2, Law 4 of the Novisima
Recopilacion.

The partidas contain other provisions in regard to the form of the libel (Law
12, title 9,partida 4), and Law 7, title 10, partida 4, confers jurisdiction upon
the church in cases of divorce.

In the royal cedula of Carlos, dated May 18, 1680, declaring the force of this
compilation, the commands of this Law 2 are practically repeated. By the
operation of this law, first enacted in 1530, those laws of
the partidas hereinbefore referred to relating to divorce, upon the discovery
and settlement of the Philippines became at once effective therein. They
have remained in force since as civil laws of the state as distinguished from
the laws of the church. It may be added also that upon them the
ecclesiastical courts apparently in part relied in determining cases for divorce
pending before them. They are cited as authorities by the writers upon
ecclesiastical law. (3 Procedimientos Eclesiasticos, Salazar and La Fuente,
p. 9; Practica Forense, Rodriguez, pp. 410, 413; 2 Practica General Forense,
Zuniga, p. 90; 2 Procedimientos Eclesiasticos, Cadena, p. 210.)

That either spouse has been guilty of adultery is a defense to his or her suit
(Law 8, title 2, partida 4), so is the fact that he has pardoned her (Law 6, title
9, partida 4). And if, after a divorce has been granted to the husband, he
commit adultery, there is a waiver of the judgment (Law 6, title 10, partida 4).
Were these provisions of the partidas in force in the Islands prior to 1889?
The general rule was that laws of the Peninsula did not rule in the colonies
unless they were expressly extended to them. As to certain laws, this result
was, however, accomplished in another way. An examination of the Laws of
the Indies will show that they are almost without exception of an
administrative character. They deal with the relations of the citizen to the
church and to the Government and some of them to matters of procedure.
The laws which treat of the rights of citizens between themselves are few.
This fact leads to the promulgation of the law which appears as Law 2, title 1,
book 2, of the Recopilacion de las Leyes Indias. The last part of Law 1 of that
title and said Law 2 are as follows:

Being in force on August 13, 1898, they continued in force with other laws of
a similar nature. (Am. Ins. Co. vs. Canter, 1 Pet., 511; proclamation of
General Merritt, August 14, 1898). There is nothing in the case of Hallett vs.
Collins (10 How., 175) which is inconsistent with this result. In fact that case
assumes that the law of the partidas regarding matrimony was in force in
Louisiana, this conclusion being reached, however, without taking into

consideration the above-mentioned Law of the Indies and without making the
proper exceptions. (Law 2, title 1, book 2.)

E., I still fell ashamed for the past, although it is seven years since we
separated. For this, then, Esteban, pardon me for pity's sake. Wipe out the
past. Remember me for the love of God. Contemplate our unhappy fate. To
you I look to assuage my sorrow. E., I have heard that you have had some
misfortunes lately. I send my sympathy, although I am unworthy of your
presence.

The partidas recognized adultery as a ground for divorce. Therefore,

according to the civil as well as the canonical law in force here on August 13,
1898, the commission of that offense gave the injured party the right to a
divorce. That provision of the substantive civil law was not repealed by the
change of sovereignty. The complete separation under the American
Government of church and state, while it changed the tribunal in which this
right should be enforced, could not affect the right itself. The fact that the
ecclesiastical courts no longer exercise such power is not important. The
jurisdiction formerly possessed by them is now vested in Courts of First
Instance, by virtue of Act No. 136. Section 56, first and fifth paragraphs of
that act, provides that "Courts of First Instance shall have original jurisdiction,
first, in all civil actions in which the subject of litigation is not capable of
pecuniary estimation; fifth, . . . and in all such special cases and proceedings
as are not otherwise provided for."

The significant words "I am unworthy of you presence" probably escaped the
attention of the judge below, because he has not quoted them. The
contention of the appellee is that the wrong for which the plaintiff sought
pardon was that of having asked for an allowance. This contention can not
for a moment be sustained. A woman does not ask her husband to blot out
the past, to have compassion on her, and, most important of all, does not say
that she is unworthy of his presence simply because she has asked him for
an allowance, something to which, according to her own belief, she had at
the time a perfect legal right. The letter is a confession of guilt.
It is admitted that the plaintiff and defendant had lived happily together from
the time of their marriage in July, 1891, to August, 1892. It is also admitted
that then the defendant suddenly, without any previous warning, took his wife
to the house of her parents, left her there, and never lived with her
afterwards. There must have been some reason for this sudden change. The
court below says that it was because the defendant had tired of his wife.
There is nothing in the evidence to support this theory. In her complaint the
plaintiff charges the defendant with having committed adultery with Gregoria
Bermejo in 1892. She produced no evidence to support this allegation as to
the time. No one of the six witnesses for the plaintiff upon this charge fix any
date prior to 1894. The other two charges relate to 1899 and 1901. There is
no evidence in the case from which a judge would be justified in finding that
from the separation in 1892 to some time in 1894 the defendant had been
unfaithful to his marriage vow. And the judge below made no such finding.

The result is (1) that Courts of First instance have jurisdiction to entertain a
suit for divorce; (2) that the only ground therefor is adultery; (3) that an action
on that ground can be maintained by the husband against the wife, or by the
wife against the husband; and (4) that the decree does not dissolve the
marriage bond. The Court of First Instance of Iloilo, therefore, committed no
error in assuming jurisdiction of this case.
(2) A motion for a new trial having been made in the court below on the
ground that the findings of fact contained in the decision were not justified by
the evidence, it becomes necessary to examine that evidence.
The adultery of the defendant was duly proved.
The finding that the plaintiff had not committed adultery is, however, plainly
and manifestly against the weight of the evidence. We arrive at this result
from a consideration chiefly of the admitted facts in the case, the most
important of which is the letter written by the plaintiff to the defendant on
March 6, 1899, and found at pages 168 and 195. This is in itself practically
conclusive against her. A portion of that letter is as follows:

Two witnesses, Epifanio Lacson and Doroteo Garcia, who testified as to

charge in connection with Gregoria, speaks of a woman brought by the
defendant to Negros in 1892. But an examination of their evidence will show
that it is entirely insufficient to prove any illicit relations between this woman
and the defendant. In view of the evidence which the plaintiff did present in
this case, we think it safe to say that if the conduct of the defendant during

the years 1892 and 1893 had furnished any ground for suspicion the plaintiff
would have been able to produce evidence thereof at the trial. She did not do
so. The lack of this evidence destroys the theory of the court below and of
the appellee that the defendant expelled the plaintiff from his house he was
tired of her and desired the company of other women. That theory is entirely
inadequate to explain the sudden termination of their marital relations.

reasons: (1) the court below made no finding of fact on the subject; (2) even
if it had found that there was condonation this would not have entitled the
plaintiff to a divorce.
By Law 6, title 9, partida 4, the wife can defeat the husband's suit for divorce
by proving that he has pardoned her. But we have found no laws in
the partidas which say that the effect of that pardon would be so far-reaching
as to entitle her to a divorce against him in a case like the present one. On
the contrary it is expressly provided in Law 8, title 2,partida 4, as follows:

The event is, however, to our minds, correctly explained by the testimony of
the defendant. The separation and the letter written by the plaintiff from which
we have quoted can only be explained on the supposition that this testimony
of the defendant is true. He stated that on his return from an inspection of
one of his estates his wife's maid gave him a letter in the handwriting of his
wife and directed to her lover, a Spanish corporal of the civil guard, named
Zabal. She admitted the genuineness of the letter, fell upon her knees, and
implored him to pardon her. That same day he took her to the home of her
parents, told what had occurred, and left her there.

For the sin of each one of them is of itself a bar to an accusation against the
other.
Our conclusion is that neither one of the parties is entitled to a divorce.
The result makes it unnecessary to consider that part of the judgment which
relates to the settlement of the conjugal partnership.

That the testimony in regard to this letter is not a fabrication of recent date is
shown by the evidence of the plaintiff's mother, one of her chief witnesses.
The mother testified that about a year after her daughter was returned to her
she heard that the defendant believed that illicit relations existed between
Zabal and the plaintiff on account of a certain letter. She heard Zabal's name
mentioned by a sergeant of police in 1893 or 1894. This may have been the
sergeant of the civil guard who, according to the testimony of Domingo
Jardelesa, was the cause why the latter did not deliver to the plaintiff a letter
intrusted to him for her by Zabal after her separation from her husband.

Section 497[[1]] authorizes us in cases of this kind "to make such findings
upon the facts and render such final judgment as justice and equity require."
The judgment below is reversed, and we find from the evidence the following
facts:
(1) The allegations of the complaint as to the marriage of the parties and as
to the acts of adultery committed by the defendant are true as therein stated
except as to the date of the adultery committed with Gregoria Bermejo.

The evidence showing the adultery who testified to facts conclusively

showing the adultery is severely criticized by the court below and the counsel
for the plaintiff. That criticism relates in a large degree to the matter of time
and dates. If this direct evidence were the only evidence in the case we
should not, perhaps, disturb the finding of the court. But when it is in its
essential points corroborated by the admitted facts which we have heretofore
recited, there is left, in our opinion, no doubt whatever of the guilt of the
plaintiff.

(2) The plaintiff, in the summer of 1892, at Talisay, in the Province of

Occidental Negros, committed adultery with one Zabal, a corporal of the civil
guard.
As conclusion of law from the foregoing facts we hold that neither party is
entitled to judgment of divorce against the other; that judgment be entered
that the plaintiff take nothing by her action or the defendant by his cross
demand, and that neither party recover of the other any costs either in this
court or the Court of First Instance.

It is said that if the plaintiff is guilty the defendant has condoned the offense.
It is not necessary to determine upon this point where the truth lies for two

Judgment will be entered accordingly forty days from the filing of this
decision, and the case remanded to the court below for execution. So
ordered.

agreement forestalled the occurrence of violent incidents between the

spouses.
Albano in filing the malpractice charge is in effect asking this Court to take
belated disciplinary action against Judge Gapusan as a member of the bar or
as a notary. (He was admitted to the bar in 1937).
There is no question that the covenents contained in the said separation
agreement are contrary to law, morals and good customs (Biton vs.
Momongan, 62 Phil. 7). Those stipulations undermine the institutions of
marriage and the family, "Marriage is not a mere contract but an inviolable
social institution". "The family is a basic social institution which public policy
cherishes and protects." (Arts. 52 and 216, Civil Code). Marriage and the
family are the bases of human society throughout the civilized world (Adong
vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864;
Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil.
168).

A.M. No. 1022-MJ May 7, 1976

REDENTOR ALBANO, complainant, vs. MUNICIPAL JUDGE PATROCINIO
C. GAPUSAN of Dumalneg, Ilocos Norte, respondent.

Redentor Albano in a verified complaint dated August 18, 1975 charged

Municipal Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos
Norte (1) with incompetence and Ignorance of the law for having prepared
and notarized a document providing for tile personal separation of husband
and wife and the extrajudicial liquidation of their conjugal partnership and (2)
with having allegedly influenced Judge Zacarias A. Crispin of the Court of
First Instance of Ilocos Norte in deciding two criminal cases.

To preserve the institutions of marriage and the family, the law considers as
void "any contract for personal separation between husband and wife" and
"every extrajudicial agreement, during the marriage, for the dissolution of the
conjugal partnership" (Art. 221, Civil Code). Before the new Civil Code, it was
held that the extrajudicial dissolution of the conjugal partnership without
judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs.
Linatoc, 74 Phil. 15).

Malpractice as a notary. In 1941 or five years before his appointment to

the bench, respondent Gapusan notarized a document for the personal
separation of the spouses Valentina Andres and Guillermo Maligta of Barrio
6, Vintar, Ilocos Norte and for the extrajudicial liquidation of their conjugal
partnership.

A notary should not facilitate the disintegration of a marriage and the family
by encouraging the separation of the spouses and extrajudically dissolving
the conjugal partnership. Notaries were severely censured by this Court for
notarizing documents which subvert the institutions of marriage and the
family (Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64
SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16
SCRA 802; Biton vs. Momongan, supra,, Panganiban vs. Borromeo, 58 Phil.
367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).

It was stipulated in that document that if either spouse should commit

adultery or concubinage, as the case may be, then the other should refrain
from filing an action against the other.
Judge Gapusan denied that he drafted the agreement. He explained that the
spouses had been separated for a long time when they signed the separation
agreement and that the wife had begotten children with her paramour. He
said that there was a stipulation in the agreement that the spouses would live
together in case of reconciliation. His belief was that the separation

Respondent Gapusan as a member of the bar should be censured for having

notarized the void separation agreement already mentioned.

However, his notarization of that document does not warrant any disciplinary
action against him as a municipal judge (he was appointed in 1946 as justice
of the peace) especially considering that his appointment to the judiciary was
screened by the Commission on Appointments (See Ty vs. San Diego, Adm.
Matter No. 169-J, June 29, 1972).

When an officer or court allows itself to enter upon the sea of suspicion, it
permits itself to enter upon a sea which has no shore, and the embarkation is
without a rudder or compass to control the direction or to ascertain its
bearing." (Dy Keng vs. Collector of Customs, 40 Phil, 118, 123).
A person has freedom to choose his friends and to hobnob with them. It is
not a crime nor unethical per se for a municipal judge to fraternize with a
Judge of the Court of First Instance. Whether the fraternization resulted in an
unjust verdict rendered by the Judge of the Court of First Instance due to the
sinister or corruptive influence of the municipal judge cannot be shown by
mere inference, or conjecture. It should be Substantiated by solid evidence.
The unjustness of the decision should be indubitably established.

Alleged misconduct in influencing CFI Judge. Albano complains that

Judge Gapusan took advantage of his intimacy with Judge Crispin. He
implies that by reason of that intimacy Judge Crispin acquitted of frustrated
murder the defendants in Criminal Case No. 102-III, People vs. Freddie
Gapusan Gamboa, et al. and convicted Albano (complainant herein) of
double frustrated murder with triple attempted murder in Criminal Case No.
70-III.

The second charge should be dismissed for being speculative and unfair to
Judge Crispin. (He retired in September, 1975).

Albano said that Freddie Gapusan, an accused in the first criminal case
above-mentioned and a complaining witness in the other case against
Albano, is a relative of Judge Gapusan. He revealed that after the acquittal
decision was rendered by Judge Crispin in Criminal Case No. 102 III, the
relatives of the accused in that case were saying that their relationship to
Judge Gapusan, a friend of Judge Crispin, proved to be "worthwhile and
useful".

WHEREFORE, the respondent, as a member of the bar, is for having

notarized the above-mentioned void agreement. The second charge is
dismissed.
SO ORDERED.

Judge Gapusan admitted in his answer that he is close to Judge Crispin

because they used to be members of the Municipal Judges League (when it
was headed by Judge Crispin) and because the latter used to be an
Executive Judge (with supervision over municipal judges). Respondent said
that his association with Judge Crispin "was purely official".

A.M. No. 1637 July 6, 1976

Judge Gapusan also admitted that Freddie Gapusan is his distant relative.
He denied that he influenced Judge Crispin in rendering his decisions in the
two criminal cases.

IN RE: ATTY. RUFILLO D. BUCANA, respondent.

It is manifest that Alliano's imputation that Judge Gapusan influenced Judge

Crispin is anchored on mere suspicion. If he has any evidence that Judge
Crispin committed any irregularity due to the alleged influence exerted by
Judge Gapusan, then Albano should have complained against Judge
Crispin's actuations. He should riot vent his ire on Judge Gapusan alone.

Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of
Victories, Dumangas, Iloilo, dated February 26, 1976, respondent Notary
Public Rufillo D. Bucana was required by this Court in its Resolution of March
23, 1976, to show cause within ten (10) days from notice, why he should not
be disciplinarily dealt with for having notarized on November 10, 1975 at
Dumangas, Iloilo an Agreement executed by the spouses Gonzalo Baltazar

and Luisa Sorongon wherein the afore-mentioned spouses agreed therein

that "in case anyone of them will remarry both parties offer no objection and
waive all civil and criminal actions against them" and that the aforementioned Agreement was "entered into for the purpose of agreement to
allow each and everyone of them to remarry without objection or
reservation ...", which affidavit is contrary to law because it sanctions an illicit
and immoral purpose.

virtue of the nature of his office, is required to exercise his duties with due
care and with due regard to the provisions of existing law.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the
notary to inform himself of the facts to which he intends to certify and to take
part in no illegal enterprise. The notary public is usually a person who has
been admitted to the practice of law, and as such, in the commingling of his
duties notary and lawyer, must be held responsible for both. We are led to
hold that a member of the bar who performs an act as a notary public of a
disgraceful or immoral character may be held to account by the court even to
the extent of disbarment."

On April 21, 1976, respondent . submitted his explanation, admitting that he

notarized the afore-mentioned document and that the Agreement is "immoral
and against public policy", but in mitigation he asserted that the document in
question was Prepared by his clerk, Lucia D. Doctolero without his previous
knowledge; that when said document was presented to him for signature
after it was signed by the parties, he vehemently refused to sign it and
informed the parties that the document was immoral; that he placed the said
document on his table among his files and more than a week later, he asked
his clerk where the document was for the purpose of destroying it, but to his
surprise he found that the same was notarized by him as per his file copies in
the office; that he dispatched his clerk to get the copy from the parties, but
the afore-mentioned parties could not be found in their respective
residences; that he must have inadvertently notarized the same in view of the
numerous documents on his table and at that time he was emotionally
disturbed as his father (now deceased) was then seriously ill. The foregoing
contentions of respondent were corroborated substantially by the separate
sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon Baltazar,
both dated April 20, 1976. 1

In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find,
however, that the aforementioned document could not have been notarized if
the respondent had only exercised the requisite care required by law in the
exercise of his duties as notary public.
WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of
malpractice and is hereby suspended from the office of not try public for a
period of six (6) months, with the admonition that a repetition of the same or
a similar act in the future will be dealt with more severely.

There is no question that the afore-mentioned Agreement is contrary to law,

morals and good customs. Marriage is an inviolable social institution, in the
maintenance of which in its purity the public is deeply interested for it is the
foundation of the family and of society without which there could be neither
civilization nor progress. 2

G.R. No. L-19671

November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET

AL., defendants-appellees.

The contract, in substance, purports to formulate an agreement between the

husband and the wife to take unto himself a concubine and the wife to live in
adulterous relations with another man, without opposition from either one,
and what is more, it induces each party to commit bigamy. 3 This is not only
immoral but in effect abets the commission of a crime. A notary public, by

Direct appeal, on factual and legal questions, from the judgment of the Court
of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of
the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one
million pesos in damages against his wife and parents-in-law, the

defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao,"

respectively.2

standpoint of the Church, due to the lack of authority from the Archbishop or
the parish priest for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948 Mamerto
Escao was handed by a maid, whose name he claims he does not
remember, a letter purportedly coming from San Carlos college students and
disclosing an amorous relationship between Pastor Tenchavez and Pacita
Noel; Vicenta translated the letter to her father, and thereafter would not
agree to a new marriage. Vicenta and Pastor met that day in the house of
Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents
while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh.
"M"), while still solicitous of her husband's welfare, was not as endearing as
her previous letters when their love was aflame.

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of
San Carlos, Cebu City, where she was then enrolled as a second year
student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do
and socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of
age, an engineer, ex-army officer and of undistinguished stock, without the
knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in
the house of one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered with the local
civil register.

Vicenta was bred in Catholic ways but is of a changeable disposition, and

Pastor knew it. She fondly accepted her being called a "jellyfish." She was
not prevented by her parents from communicating with Pastor (Exh. "1Escao"), but her letters became less frequent as the days passed. As of
June, 1948 the newlyweds were already estranged (Exh. "2-Escao").
Vicenta had gone to Jimenez, Misamis Occidental, to escape from the
scandal that her marriage stirred in Cebu society. There, a lawyer filed for her
a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage.
She did not sign the petition (Exh. "B-5"). The case was dismissed without
prejudice because of her non-appearance at the hearing (Exh. "B-4").

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that
the couple were deeply in love. Together with a friend, Pacita Noel, their
matchmaker and go-between, they had planned out their marital future
whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their
engagement was broken; Vicenta returned the engagement ring and
accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she
pleaded for his return, and they reconciled. This time they planned to get
married and then elope. To facilitate the elopement, Vicenta had brought
some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was
their usual trysting place.

On 24 June 1950, without informing her husband, she applied for a passport,
indicating in her application that she was single, that her purpose was to
study, and she was domiciled in Cebu City, and that she intended to return
after two years. The application was approved, and she left for the United
States. On 22 August 1950, she filed a verified complaint for divorce against
the herein plaintiff in the Second Judicial District Court of the State of Nevada
in and for the County of Washoe, on the ground of "extreme cruelty, entirely
mental in character." On 21 October 1950, a decree of divorce, "final and
absolute", was issued in open court by the said tribunal.

Although planned for the midnight following their marriage, the elopement did
not, however, materialize because when Vicente went back to her classes
after the marriage, her mother, who got wind of the intended nuptials, was
already waiting for her at the college. Vicenta was taken home where she
admitted that she had already married Pastor. Mamerto and Mena Escao
were surprised, because Pastor never asked for the hand of Vicente, and
were disgusted because of the great scandal that the clandestine marriage
would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the
Escao spouses sought priestly advice. Father Reynes suggested a
recelebration to validate what he believed to be an invalid marriage, from the

In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of
Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10
September 1954, Vicenta sought papal dispensation of her marriage (Exh.
"D"-2).

10

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in

Nevada. She now lives with him in California, and, by him, has begotten
children. She acquired American citizenship on 8 August 1958.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the

defendant-appellee, Vicenta Escao, were validly married to each other, from
the standpoint of our civil law, is clearly established by the record before us.
Both parties were then above the age of majority, and otherwise qualified;
and both consented to the marriage, which was performed by a Catholic
priest (army chaplain Lavares) in the presence of competent witnesses. It is
nowhere shown that said priest was not duly authorized under civil law to
solemnize marriages.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a

complaint in the Court of First Instance of Cebu, and amended on 31 May
1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao,
whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman
Catholic Church, for having, through its Diocesan Tribunal, decreed the
annulment of the marriage, and asked for legal separation and one million
pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her
parents denied that they had in any way influenced their daughter's acts, and
counterclaimed for moral damages.

The chaplain's alleged lack of ecclesiastical authorization from the parish

priest and the Ordinary, as required by Canon law, is irrelevant in our civil
law, not only because of the separation of Church and State but also
because Act 3613 of the Philippine Legislature (which was the marriage law
in force at the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the
legal capacity of the contracting parties and consent. (Emphasis
supplied)

The appealed judgment did not decree a legal separation, but freed the
plaintiff from supporting his wife and to acquire property to the exclusion of
his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao
for moral and exemplary damages and attorney's fees against the plaintiffappellant, to the extent of P45,000.00, and plaintiff resorted directly to this
Court.

The actual authority of the solemnizing officer was thus only a formal
requirement, and, therefore, not essential to give the marriage civil
effects,3 and this is emphasized by section 27 of said marriage act, which
provided the following:

The appellant ascribes, as errors of the trial court, the following:

SEC. 27. Failure to comply with formal requirements. No marriage
shall be declared invalid because of the absence of one or several of
the formal requirements of this Act if, when it was performed, the
spouses or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and that
the marriage was perfectly legal.

1. In not declaring legal separation; in not holding defendant Vicenta

F. Escao liable for damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the
heirs of Doa Mena Escao liable for damages;.

The good faith of all the parties to the marriage (and hence the validity of
their marriage) will be presumed until the contrary is positively proved (Lao
vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is
well to note here that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when Vicenta's parents
consulted Father Reynes and the archbishop of Cebu. Moreover, the very act
of Vicenta in abandoning her original action for annulment and subsequently

3 In holding the plaintiff liable for and requiring him to pay the
damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the
plaintiff.

11

suing for divorce implies an admission that her marriage to plaintiff was valid
and binding.

violation of the declared public policy of the state, specially in view of the
third paragraph of Article 17 of the Civil Code that prescribes the following:

Defendant Vicenta Escao argues that when she contracted the marriage
she was under the undue influence of Pacita Noel, whom she charges to
have been in conspiracy with appellant Tenchavez. Even granting, for
argument's sake, the truth of that contention, and assuming that Vicenta's
consent was vitiated by fraud and undue influence, such vices did not render
her marriage ab initio void, but merely voidable, and the marriage remained
valid until annulled by a competent civil court. This was never done, and
admittedly, Vicenta's suit for annulment in the Court of First Instance of
Misamis was dismissed for non-prosecution.

Prohibitive laws concerning persons, their acts or property, and those

which have for their object public order, policy and good customs,
shall not be rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a foreign
country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce
decrees would, in effect, give rise to an irritating and scandalous
discrimination in favor of wealthy citizens, to the detriment of those members
of our polity whose means do not permit them to sojourn abroad and obtain
absolute divorces outside the Philippines.

It is equally clear from the record that the valid marriage between Pastor
Tenchavez and Vicenta Escao remained subsisting and undissolved under
Philippine law, notwithstanding the decree of absolute divorce that the wife
sought and obtained on 21 October 1950 from the Second Judicial District
Court of Washoe County, State of Nevada, on grounds of "extreme cruelty,
entirely mental in character." At the time the divorce decree was issued,
Vicenta Escao, like her husband, was still a Filipino citizen. 4 She was then
subject to Philippine law, and Article 15 of the Civil Code of the Philippines
(Rep. Act No. 386), already in force at the time, expressly provided:

From this point of view, it is irrelevant that appellant Pastor Tenchavez should
have appeared in the Nevada divorce court. Primarily because the policy of
our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam
quot.); and additionally, because the mere appearance of a non-resident
consort cannot confer jurisdiction where the court originally had none (Area
vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escao's divorce and second
marriage are not entitled to recognition as valid; for her previous union to
plaintiff Tenchavez must be declared to be existent and undissolved. It
follows, likewise, that her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband constitute in law a wrong
caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated
charge of deceit nor an anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate excuse. Wherefore, her
marriage and cohabitation with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint of Philippine Law, and
entitles plaintiff-appellant Tenchavez to a decree of "legal separation under
our law, on the basis of adultery" (Revised Penal Code, Art. 333).

Laws relating to family rights and duties or to the status, condition

and legal capacity of persons are binding upon the citizens of the
Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute
divorce, quo ad vinculo matrimonii; and in fact does not even use that term,
to further emphasize its restrictive policy on the matter, in contrast to the
preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the
present Civil Code only provides for legal separation (Title IV, Book 1, Arts.
97 to 108), and, even in that case, it expressly prescribes that "the marriage
bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a
foreign decree of absolute divorce betiveen Filipino citizens could be a patent

12

The foregoing conclusions as to the untoward effect of a marriage after an

invalid divorce are in accord with the previous doctrines and rulings of this
court on the subject, particularly those that were rendered under our laws
prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize
divorces a vinculo before 1917, when Act 2710 became effective; and the
present Civil Code of the Philippines, in disregarding absolute divorces, in
effect merely reverted to the policies on the subject prevailing before Act
2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act
above-mentioned, are now, fully applicable. Of these, the decision
in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in
that case:

The hardship of the existing divorce laws in the Philippine Islands are
well known to the members of the Legislature. It is the duty of the
Courts to enforce the laws of divorce as written by Legislature if they
are constitutional. Courts have no right to say that such laws are too
strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto
Escao and his wife, the late Doa Mena Escao, alienated the affections of
their daughter and influenced her conduct toward her husband are not
supported by credible evidence. The testimony of Pastor Tenchavez about
the Escao's animosity toward him strikes us to be merely conjecture and
exaggeration, and are belied by Pastor's own letters written before this suit
was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In
these letters he expressly apologized to the defendants for "misjudging them"
and for the "great unhappiness" caused by his "impulsive blunders" and
"sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the
Escao house to visit and court Vicenta, and the record shows nothing to
prove that he would not have been accepted to marry Vicente had he openly
asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such
unexpected event, the parents of Vicenta proposed and arranged that the
marriage be recelebrated in strict conformity with the canons of their religion
upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to
defendants Mamerto Escao and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escao did not seek to compel or induce
their daughter to assent to the recelebration but respected her decision, or
that they abided by her resolve, does not constitute in law an alienation of
affections. Neither does the fact that Vicenta's parents sent her money while
she was in the United States; for it was natural that they should not wish their
daughter to live in penury even if they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130-132).

As the divorce granted by the French Court must be ignored, it

results that the marriage of Dr. Mory and Leona Castro, celebrated in
London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The
claims of the very children to participate in the estate of Samuel
Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The
children of adulterous relations are wholly excluded. The word
"descendants" as used in Article 941 of the Civil Code cannot be
interpreted to include illegitimates born of adulterous relations.
(Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in
the case at bar, the Gmur case is authority for the proposition that such union
is adulterous in this jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first marriage, that
stands undissolved in Philippine law. In not so declaring, the trial court
committed error.
True it is that our ruling gives rise to anomalous situations where the status of
a person (whether divorced or not) would depend on the territory where the
question arises. Anomalies of this kind are not new in the Philippines, and the
answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

There is no evidence that the parents of Vicenta, out of improper motives,

aided and abetted her original suit for annulment, or her subsequent divorce;
she appears to have acted independently, and being of age, she was entitled

13

to judge what was best for her and ask that her decisions be respected. Her
parents, in so doing, certainly cannot be charged with alienation of affections
in the absence of malice or unworthy motives, which have not been shown,
good faith being always presumed until the contrary is proved.

face of the proven facts and circumstances. Court actions are not established
for parties to give vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant Pastor
Tenchavez from defendant Vicente Escao, it is proper to take into account,
against his patently unreasonable claim for a million pesos in damages, that
(a) the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on appellant's part; (b) that
the parties never lived together; and (c) that there is evidence that appellant
had originally agreed to the annulment of the marriage, although such a
promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that appellant entered
into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover
P25,000 only by way of moral damages and attorney's fees.

SEC. 529. Liability of Parents, Guardians or Kin. The law

distinguishes between the right of a parent to interest himself in the
marital affairs of his child and the absence of rights in a stranger to
intermeddle in such affairs. However, such distinction between the
liability of parents and that of strangers is only in regard to what will
justify interference. A parent isliable for alienation of affections
resulting from his own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her spouse, but he is not
liable unless he acts maliciously, without justification and from
unworthy motives. He is not liable where he acts and advises his
child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not
terminating his right and liberty to interest himself in, and be
extremely solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the separation of
the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or
interference are indiscreet or unfortunate, although it has been held
that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home and
afford him or her protection and support, so long as he has not
maliciously enticed his child away, or does not maliciously entice or
cause him or her to stay away, from his or her spouse. This rule has
more frequently been applied in the case of advice given to a
married daughter, but it is equally applicable in the case of advice
given to a son.

With regard to the P45,000 damages awarded to the defendants, Dr.

Mamerto Escao and Mena Escao, by the court below, we opine that the
same are excessive. While the filing of this unfounded suit must have
wounded said defendants' feelings and caused them anxiety, the same could
in no way have seriously injured their reputation, or otherwise prejudiced
them, lawsuits having become a common occurrence in present society.
What is important, and has been correctly established in the decision of the
court below, is that said defendants were not guilty of any improper conduct
in the whole deplorable affair. This Court, therefore, reduces the damages
awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after
the effectivity of the present Civil Code (Rep. Act 386), is not entitled to
recognition as valid in this jurisdiction; and neither is the marriage contracted
with another party by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in the country;

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or

social discrimination and with having exerted efforts and pressured her to
seek annulment and divorce, unquestionably caused them unrest and
anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the

14

(2) That the remarriage of divorced wife and her co-habitation with a person
other than the lawful husband entitle the latter to a decree of legal separation
conformably to Philippine law;

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn
seeks to set aside the Orders, dated September 15, 1983 and August 3,
1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied
her Motion to Dismiss said case, and her Motion for Reconsideration of the
Dismissal Order, respectively.

(3) That the desertion and securing of an invalid divorce decree by one
consort entitles the other to recover damages;

The basic background facts are that petitioner is a citizen of the Philippines
while private respondent is a citizen of the United States; that they were
married in Hongkong in 1972; that, after the marriage, they established their
residence in the Philippines; that they begot two children born on April 4,
1973 and December 18, 1975, respectively; that the parties were divorced in
Nevada, United States, in 1982; and that petitioner has re-married also in
Nevada, this time to Theodore Van Dorn.

(4) That an action for alienation of affections against the parents of one
consort does not lie in the absence of proof of malice or unworthy motives on
their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal
separation from defendant Vicenta F. Escao;

Dated June 8, 1983, private respondent filed suit against petitioner in Civil
Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City,
stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for
short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private
respondent be declared with right to manage the conjugal property. Petitioner
moved to dismiss the case on the ground that the cause of action is barred
by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the
Motion to Dismiss in the mentioned case on the ground that the property
involved is located in the Philippines so that the Divorce Decree has no
bearing in the case. The denial is now the subject of this certiorari
proceeding.

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant

Tenchavez the amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto
Escao and the estate of his wife, the deceased Mena Escao, P5,000 by
way of damages and attorneys' fees.
Neither party to recover costs.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and

is not subject to appeal. certiorari and Prohibition are neither the remedies to
question the propriety of an interlocutory order of the trial Court. However,
when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a
certiorari proceeding to exercise its supervisory authority and to correct the
error committed which, in such a case, is equivalent to lack of
jurisdiction. 1 Prohibition would then lie since it would be useless and a waste

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO,
JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.

15

of time to go ahead with the proceedings. 2 Weconsider the petition filed in

this case within the exception, and we have given it due course.

You are hereby authorized to accept service of Summons, to

file an Answer, appear on my behalf and do an things
necessary and proper to represent me, without further
contesting, subject to the following:

For resolution is the effect of the foreign divorce on the parties and their
alleged conjugal property in the Philippines.

1. That my spouse seeks a divorce on the ground of

incompatibility.

Petitioner contends that respondent is estopped from laying claim on the

alleged conjugal property because of the representation he made in the
divorce proceedings before the American Court that they had no community
of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.

2. That there is no community of property to be adjudicated

by the Court.
3. 'I'hat there are no community obligations to be adjudicated
by the court.

For his part, respondent avers that the Divorce Decree issued by the Nevada
Court cannot prevail over the prohibitive laws of the Philippines and its
declared national policy; that the acts and declaration of a foreign Court
cannot, especially if the same is contrary to public policy, divest Philippine
Courts of jurisdiction to entertain matters within its jurisdiction.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of
the States of the United States. The decree is binding on private respondent
as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the
same being contrary to local law and public policy.

For the resolution of this case, it is not necessary to determine whether the
property relations between petitioner and private respondent, after their
marriage, were upon absolute or relative community property, upon complete
separation of property, or upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.

It is true that owing to the nationality principle embodied in Article 15 of the

Civil Code, 5 only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept of
public police and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid
according to their national law. 6 In this case, the divorce in Nevada released
private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794,
799:

The Nevada District Court, which decreed the divorce, had obtained
jurisdiction over petitioner who appeared in person before the Court during
the trial of the case. It also obtained jurisdiction over private respondent who,
giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to
the divorce on the ground of incompatibility in the understanding that there
were neither community property nor community obligations. 3 As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP
& GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce
proceedings:

The purpose and effect of a decree of divorce from the bond

of matrimony by a court of competent jurisdiction are to
change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage

xxx xxx xxx

16

tie when thus severed as to one party, ceases to bind either.

A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of
a penalty. that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the
bond of the former marriage.

of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the

City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign
absolute divorce, only to be followed by a criminal infidelity suit of the latter
against the former, provides Us the opportunity to lay down a decisional rule
on what hitherto appears to be an unresolved jurisdictional question.

Thus, pursuant to his national law, private respondent is no longer the

husband of petitioner. He would have no standing to sue in the case below
as petitioner's husband entitled to exercise control over conjugal assets. As
he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate,
he is estopped by his own representation before said Court from asserting
his right over the alleged conjugal property.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino

citizen, and private respondent Erich Ekkehard Geiling, a German national,
were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20,
1980. 1

To maintain, as private respondent does, that, under our laws, petitioner has
to be considered still married to private respondent and still subject to a
wife's obligations under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice
are to be served.

Thereafter, marital discord set in, with mutual recriminations between the
spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony
eventuated in private respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local Court in January, 1983.
He claimed that there was failure of their marriage and that they had been
living apart since April, 1982. 2

WHEREFORE, the Petition is granted, and respondent Judge is hereby

ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court.

Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch
XXXII, on January 23, 1983 where the same is still pending as Civil Case No.
83-15866. 3

Without costs.
SO ORDERED.

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal

Republic of Germany, promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the child was granted to
petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the
applicable law of that foreign jurisdiction. 4

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA IBAYSOMERA, in her capacity as Presiding Judge of the Regional Trial Court

17

On June 27, 1986, or more than five months after the issuance of the divorce
decree, private respondent filed two complaints for adultery before the City
Fiscal of Manila alleging that, while still married to said respondent, petitioner
"had an affair with a certain William Chia as early as 1982 and with yet
another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of evidence. 5 However,
upon review, the respondent city fiscal approved a resolution, dated January
8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled
to two branches of the Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil and William
Chia",docketed as Criminal Case No. 87-52435, was assigned to Branch
XXVI presided by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case
No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the
same court. 7

by the respondent judge in an order dated September 8, 1987. The same

order also directed the arraignment of both accused therein, that is, petitioner
and William Chia. The latter entered a plea of not guilty while the petitioner
refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and
the former was ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On March 14, 1987, petitioner filed a petition with the Secretary of Justice
asking that the aforesaid resolution of respondent fiscal be set aside and the
cases against her be dismissed. 8 A similar petition was filed by James Chua,
her co-accused in Criminal Case No. 87-52434. The Secretary of Justice,
through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings" and to elevate the entire records of both cases to
his office for review. 9

On October 21, 1987, this Court issued a temporary restraining order

enjoining the respondents from implementing the aforesaid order of
September 8, 1987 and from further proceeding with Criminal Case No. 8752435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoez acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16

Petitioner thereafter filed a motion in both criminal cases to defer her

arraignment and to suspend further proceedings thereon. 10 As a
consequence, Judge Leonardo Cruz suspended proceedings in Criminal
Case No. 87-52434. On the other hand, respondent judge merely reset the
date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987.
Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No.
87-52435 until after the resolution of the petition for review then pending
before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well
as four other crimes against chastity, cannot be prosecuted except upon a
sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in point of strict
law the jurisdiction of the court over the offense is vested in it by the Judiciary
Law, the requirement for a sworn written complaint is just as jurisdictional a
mandate since it is that complaint which starts the prosecutory
proceeding 19 and without which the court cannot exercise its jurisdiction to
try the case.

On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the
annulment of the order of the lower court denying her motion to quash. The
petition is anchored on the main ground that the court is without jurisdiction
"to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal
complaint." 15

We find this petition meritorious. The writs prayed for shall accordingly issue.

18

Now, the law specifically provides that in prosecutions for adultery and
concubinage the person who can legally file the complaint should be the
offended spouse, and nobody else. Unlike the offenses of seduction,
abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned
do not apply to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction, abduction, rape
and acts of lasciviousness, in default of her parents, grandparents or
guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.

relationship is still subsisting at the time of the institution of the criminal

action for, adultery. This is a logical consequence since the raison d'etre of
said provision of law would be absent where the supposed offended party
had ceased to be the spouse of the alleged offender at the time of the filing
of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of
the complainant to commence the action be definitely established and, as
already demonstrated, such status or capacity must indubitably exist as of
the time he initiates the action. It would be absurd if his capacity to bring the
action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but
ceased before, or was acquired subsequent to but did not exist at the time of,
the institution of the case. We would thereby have the anomalous spectacle
of a party bringing suit at the very time when he is without the legal capacity
to do so.

Corollary to such exclusive grant of power to the offended spouse to institute

the action, it necessarily follows that such initiator must have the status,
capacity or legal representation to do so at the time of the filing of the
criminal action. This is a familiar and express rule in civil actions; in fact, lack
of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.

To repeat, there does not appear to be any local precedential jurisprudence

on the specific issue as to when precisely the status of a complainant as an
offended spouse must exist where a criminal prosecution can be commenced
only by one who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the inquiry ;would
be whether it is necessary in the commencement of a criminal action for
adultery that the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by the
former against the latter.

The absence of an equivalent explicit rule in the prosecution of criminal

cases does not mean that the same requirement and rationale would not
apply. Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the
complaining witness therein. However, in the so-called "private crimes" or
those which cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.

American jurisprudence, on cases involving statutes in that jurisdiction which

are in pari materia with ours, yields the rule that after a divorce has been
decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse
shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22

This policy was adopted out of consideration for the aggrieved party who
might prefer to suffer the outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article
344 of the Revised Penal Code thus presupposes that the marital

In the cited Loftus case, the Supreme Court of Iowa held that

19

'No prosecution for adultery can be commenced except on

the complaint of the husband or wife.' Section 4932,
Code. Though Loftus was husband of defendant when the
offense is said to have been committed, he had ceased to
be such when the prosecution was begun; and appellant
insists that his status was not such as to entitle him to make
the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in
explaining the reason for this provision in the statute; and we
are of the opinion that the unoffending spouse must be such
when the prosecution is commenced. (Emphasis supplied.)

instance, private respondent cannot sue petitioner, as her

husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. ... 25

We see no reason why the same doctrinal rule should not apply in this case
and in our jurisdiction, considering our statutory law and jural policy on the
matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the
accused spouse, at the time of the filing of the complaint.

Under the same considerations and rationale, private respondent, being no

longer the husband of petitioner, had no legal standing to commence the
adultery case under the imposture that he was the offended spouse at the
time he filed suit.

In the present case, the fact that private respondent obtained a valid divorce
in his country, the Federal Republic of Germany, is admitted. Said divorce
and its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law
on the matter of status of persons.

The allegation of private respondent that he could not have brought this case
before the decree of divorce for lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family
nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law
on adultery, 26 since there would thenceforth be no spousal relationship to
speak of. The severance of the marital bond had the effect of dissociating the
former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce
was granted by a United States court between Alice Van Dornja Filipina, and
her American husband, the latter filed a civil case in a trial court here alleging
that her business concern was conjugal property and praying that she be
ordered to render an accounting and that the plaintiff be granted the right to
manage the business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:

The aforecited case of United States vs. Mata cannot be successfully relied
upon by private respondent. In applying Article 433 of the old Penal Code,
substantially the same as Article 333 of the Revised Penal Code, which
punished adultery "although the marriage be afterwards declared void", the
Court merely stated that "the lawmakers intended to declare adulterous the

There can be no question as to the validity of that Nevada

divorce in any of the States of the United States. The decree
is binding on private respondent as an American citizen. For

20

infidelity of a married woman to her marital vows, even though it should be

made to appear that she is entitled to have her marriage contract declared
null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom
that the complaint can still be filed after the declaration of nullity because
such declaration that the marriage is void ab initio is equivalent to stating that
it never existed. There being no marriage from the beginning, any complaint
for adultery filed after said declaration of nullity would no longer have a leg to
stand on. Moreover, what was consequently contemplated and within the
purview of the decision in said case is the situation where the criminal action
for adultery was filed before the termination of the marriage by a judicial
declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in
this case, by a valid foreign divorce.

foreigner. However, the divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be proven.Our courts do not
take judicial notice of foreign laws and judgments; hence, like any other facts,
both the divorce decree and the national law of the alien must be alleged and
proven according to our law on evidence.
The Case

Private respondent's invocation of Donio-Teves, et al. vs.

Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A
cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.

The assailed Order denied reconsideration of the above-quoted

Decision.

Before us is a Petition for Review under Rule 45 of the Rules of Court,

seeking to nullify the January 7, 1999 Decision [1] and the March 24, 1999
Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026AF. The assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia
and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City
as dissolved and both parties can now remarry under existing and applicable
laws to any and/or both parties.[3]

The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987. [4] They lived together
as husband and wife in Australia. On May 18, 1989, [5] a decree of divorce,
purportedly dissolving the marriage, was issued by an Australian family court.

WHEREFORE, the questioned order denying petitioner's motion to quash

is SET ASIDE and another one enteredDISMISSING the complaint in
Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made
permanent.

On June 26, 1992, respondent became an Australian citizen, as shown

by a Certificate of Australian Citizenship issued by the Australian
government.[6] Petitioner -- a Filipina -- and respondent were married on
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.
[7]
In their application for a marriage license, respondent was declared as
single and Filipino.[8]

SO ORDERED.

Starting October 22, 1995, petitioner and respondent lived separately

without prior judicial dissolution of their marriage. While the two were still in
Australia, their conjugal assets were divided on May 16, 1996, in accordance
with their Statutory Declarations secured in Australia. [9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity
of Marriage[10] in the court a quo, on the ground of bigamy -- respondent
allegedly had a prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of respondents marriage to
Editha Samson only in November, 1997.

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondent.
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the

21

In his Answer, respondent averred that, as far back as 1993, he had

revealed to petitioner his prior marriage and its subsequent dissolution.[11] He
contended that his first marriage to an Australian citizen had been validly
dissolved by a divorce decree obtained in Australia in 1989; [12] thus, he was
legally capacitated to marry petitioner in 1994.

2
The failure of the respondent, who is now a naturalized Australian, to present
a certificate of legal capacity to marry constitutes absence of a substantial
requisite voiding the petitioners marriage to the respondent

On July 7, 1998 -- or about five years after the couples wedding and
while the suit for the declaration of nullity was pending -- respondent was
able to secure a divorce decree from a family court in Sydney, Australia
because the marriage ha[d] irretrievably broken down.[13]

3
The trial court seriously erred in the application of Art. 26 of the Family Code
in this case.

Respondent prayed in his Answer that the Complaint be dismissed on

the ground that it stated no cause of action.[14] The Office of the Solicitor
General agreed with respondent.[15] The court marked and admitted the
documentary evidence of both parties. [16] After they submitted their respective
memoranda, the case was submitted for resolution. [17]

4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21,
35, 40, 52 and 53 of the Family Code as the applicable provisions in this
case.

Thereafter, the trial court rendered the assailed Decision and Order.

5
Ruling of the Trial Court
The trial court gravely erred in pronouncing that the divorce decree obtained
by the respondent in Australia ipso facto capacitated the parties to remarry,
without first securing a recognition of the judgment granting the divorce
decree before our courts.[19]

The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis of any defect in an
essential element of the marriage; that is, respondents alleged lack of legal
capacity to remarry. Rather, it based its Decision on the divorce decree
obtained by respondent. The Australian divorce had ended the marriage;
thus, there was no more marital union to nullify or annul.

The Petition raises five issues, but for purposes of this Decision, we
shall concentrate on two pivotal ones: (1) whether the divorce between
respondent and Editha Samson was proven, and (2) whether respondent
was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.

Hence, this Petition.[18]

The Courts Ruling

Issues

The Petition is partly meritorious.

Petitioner submits the following issues for our consideration:

1

First Issue:
Proving the Divorce Between Respondent and Editha Samson

The trial court gravely erred in finding that the divorce decree obtained in
Australia by the respondent ipso facto terminated his first marriage to Editha
Samson thereby capacitating him to contract a second marriage with the
petitioner.

22

Petitioner assails the trial courts recognition of the divorce between

respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce decree, like any other foreign judgment,
may be given recognition in this jurisdiction only upon proof of the existence
of (1) the foreign law allowing absolute divorce and (2) the alleged divorce
decree itself. She adds that respondent miserably failed to establish these
elements.

(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to

Petitioner adds that, based on the first paragraph of Article 26 of the

Family Code, marriages solemnized abroad are governed by the law of the
place where they were celebrated (the lex loci celebrationis). In effect, the
Code requires the presentation of the foreign law to show the conformity of
the marriage in question to the legal requirements of the place where the
marriage was performed.

ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his or
her previous marriage. x x x.

At the outset, we lay the following basic legal principles as the take-off
points for our discussion. Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it. [21] A marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad, because of
Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a
Filipino and a foreigner, Article 26[25] of the Family Code allows the former to
contract a subsequent marriage in case the divorce is validly obtained
abroad by the alien spouse capacitating him or her to remarry. [26] A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws. [27]

ART. 52. The judgment of annulment or of absolute nullity of the marriage,

the partition and distribution of the properties of the spouses, and the delivery
of the childrens presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same shall not affect
their persons.
Respondent, on the other hand, argues that the Australian divorce
decree is a public document -- a written official act of an Australian family
court. Therefore, it requires no further proof of its authenticity and due
execution.

A comparison between marriage and divorce, as far as pleading and

proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that
aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law.
[28]
Therefore, before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it. [29] Presentation
solely of the divorce decree is insufficient.

Respondent is getting ahead of himself. Before a foreign judgment is

given presumptive evidentiary value, the document must first be presented
and admitted in evidence.[30] A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment is the judgment
itself.[31] The decree purports to be a written act or record of an act of an
official body or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country by
either (1) an official publication or (2) a copy thereof attested [33] by the officer
having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office. [34]

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in
evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:

The divorce decree between respondent and Editha Samson appears to

be an authentic one issued by an Australian family court. [35] However,

xxxxxxxxx

23

appearance is not sufficient; compliance with the aforementioned rules on

evidence must be demonstrated.

notice must be exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.

Fortunately for respondents cause, when the divorce decree of May 18,
1989 was submitted in evidence, counsel for petitioner objected, not to its
admissibility, but only to the fact that it had not been registered in the Local
Civil Registry of Cabanatuan City.[36] The trial court ruled that it was
admissible, subject to petitioners qualification. [37] Hence, it was admitted in
evidence and accorded weight by the judge. Indeed, petitioners failure to
object properly rendered the divorce decree admissible as a written act of the
Family Court of Sydney, Australia.[38]

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce,
respondent was legally incapacitated to marry her in 1994. Hence, she
concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly
admitted in evidence, adequately established his legal capacity to marry
under Australian law.

Compliance with the quoted articles (11, 13 and 52) of the Family Code
is not necessary; respondent was no longer bound by Philippine personal
laws after he acquired Australian citizenship in 1992. [39] Naturalization is the
legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen. [40] Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By
becoming an Australian, respondent severed his allegiance to the Philippines
and the vinculum juris that had tied him to Philippine personal laws.

Respondents
contention
is
untenable. In
its
strict
legal
sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic ones
are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce ora
mensa et thoro. The first kind terminates the marriage, while the second
suspends it and leaves the bond in full force. [45] There is no showing in the
case at bar which type of divorce was procured by respondent.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law
falls upon petitioner, because she is the party challenging the validity of a
foreign judgment. He contends that petitioner was satisfied with the original
of the divorce decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine
courts; thus, judges may take judicial notice of foreign laws in the exercise of
sound discretion.

Respondent presented a decree nisi or an interlocutory decree -- a

conditional or provisional judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute divorce may follow
after the lapse of the prescribed period during which no reconciliation is
effected.[46]
Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some other
jurisdictions, remarriage may be limited by statute; thus, the guilty party in a
divorce which was granted on the ground of adultery may be prohibited from
marrying again. The court may allow a remarriage only after proof of good
behavior.[47]

We are not persuaded. The burden of proof lies with the party who
alleges the existence of a fact or thing necessary in the prosecution or
defense of an action.[41] In civil cases, plaintiffs have the burden of proving
the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations
in their answer when they introduce new matters. [42] Since the divorce was a
defense raised by respondent, the burden of proving the pertinent Australian
law validating it falls squarely upon him.

On its face, the herein Australian divorce decree contains a restriction

that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the
offence of bigamy.[48]

It is well-settled in our jurisdiction that our courts cannot take judicial

notice of foreign laws.[43] Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges are
supposed to know by reason of their judicial function. [44]The power of judicial

This quotation bolsters our contention that the divorce obtained by

respondent may have been restricted. It did not absolutely establish his legal
capacity to remarry according to his national law. Hence, we find no basis for

24

the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondents capacity to remarry despite the
paucity of evidence on this matter.

Based on the above records, we cannot conclude that respondent, who

was then a naturalized Australian citizen, was legally capacitated to marry
petitioner on January 12, 1994. We agree with petitioners contention that the
court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law governing his status;
or at the very least, to prove his legal capacity to contract the second
marriage.

We also reject the claim of respondent that the divorce decree raises a
disputable presumption or presumptive evidence as to his civil status based
on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no
proof has been presented on the legal effects of the divorce decree obtained
under Australian laws.

Neither can we grant petitioners prayer to declare her marriage to

respondent null and void on the ground of bigamy. After all, it may turn out
that under Australian law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in that, then
the court a quo may declare a nullity of the parties marriage on the ground of
bigamy, there being already in evidence two existing marriage certificates,
which were both obtained in the Philippines, one in Malabon, Metro Manila
dated March 1, 1987 and the other, in Cabanatuan City dated January 12,
1994.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article
21 of the Family Code was not submitted together with the application for a
marriage license. According to her, its absence is proof that respondent did
not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it in
court. A duly authenticated and admitted certificate is prima facie evidence of
legal capacity to marry on the part of the alien applicant for a marriage
license.[50]

WHEREFORE, in the interest of orderly procedure and substantial

justice, we REMAND the case to the court a quo for the purpose of receiving
evidence which conclusively show respondents legal capacity to marry
petitioner; and failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.

As it is, however, there is absolutely no evidence that proves

respondents legal capacity to marry petitioner. A review of the records before
this Court shows that only the following exhibits were presented before the
lower court: (1) for petitioner: (a) Exhibit A Complaint; [51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon,
Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A. Recio and
Editha D. Samson was in its records; [54] and (e) Exhibit E Certificate of
Australian Citizenship of Rederick A. Recio;[55] (2) for respondent: (a) Exhibit
1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia; [57] (c) Exhibit 3
Certificate of Australian Citizenship of Rederick A. Recio; [58](d) Exhibit 4
Decree Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22,
1995.[60]

SO ORDERED.

G.R. No. 11263

November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS

RUEDA, defendant-appellee.

This is an action by the wife against her husband for support outside of the
conjugal domicile. From a judgment sustaining the defendant's demurrer
upon the ground that the facts alleged in the complaint do not state a cause
of action, followed by an order dismissing the case after the plaintiff declined
to amend, the latter appealed.

25

It was urged in the first instance, and the court so held, that the defendant
cannot be compelled to support the plaintiff, except in his own house, unless
it be by virtue of a judicial decree granting her a divorce or separation from
the defendant.

terminate it at any shorter period by virtue of any contract they may make
.The reciprocal rights arising from this relation, so long as it continues, are
such as the law determines from time to time, and none other. When the
legal existence of the parties is merged into one by marriage, the new
relation is regulated and controlled by the state or government upon
principles of public policy for the benefit of society as well as the parties. And
when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. With these principles to
guide us, we will inquire into the status of the law touching and governing the
question under consideration.

The parties were legally married in the city of Manila on January 7, 1915, and
immediately thereafter established their residence at 115 Calle San
Marcelino, where they lived together for about a month, when the plaintiff
returned to the home of her parents. The pertinent allegations of the
complaint are as follows:
That the defendant, one month after he had contracted marriage with
the plaintiff, demanded of her that she perform unchaste and
lascivious acts on his genital organs; that the plaintiff spurned the
obscene demands of the defendant and refused to perform any act
other than legal and valid cohabitation; that the defendant, since that
date had continually on other successive dates, made similar lewd
and indecorous demands on his wife, the plaintiff, who always
spurned them, which just refusals of the plaintiff exasperated the
defendant and induce him to maltreat her by word and deed and
inflict injuries upon her lips, her face and different parts of her body;
and that, as the plaintiff was unable by any means to induce the
defendant to desist from his repugnant desires and cease from
maltreating her, she was obliged to leave the conjugal abode and
take refuge in the home of her parents.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands
(Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of
Civil Marriage of 1870, in force in the Peninsula, were extended to the
Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil.
Rep., 705). Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to
mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The
second paragraph deals with the management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow
him when he charges his domicile or residence.

Marriage in this jurisdiction is a contract entered into in the manner and with
the solemnities established by General Orders No. 68, in so far as its civil
effects are concerned requiring the consent of the parties. (Garcia vs.
Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the
termination of the marriage ceremony, a conjugal partnership is formed
between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To
this extent a marriage partakes of the nature of an ordinary contract. But it is
something more than a mere contract. It is a new relation, the rights, duties,
and obligations of which rest not upon the agreement of the parties but upon
the general law which defines and prescribes those rights, duties, and
obligations .Marriage is an institution, in the maintenance of which in its purity
the public is deeply interested. It is a relation for life and the parties cannot

Notwithstanding the provisions of the foregoing paragraph, the court

may for just cause relieve her from this duty when the husband
removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other
reciprocally to the whole extent specified in the preceding article.
1. The consorts.

26

xxx

xxx

xxx

person obliged to furnish subsistence, to receive and maintain in his

own house the one who is entitled to receive it; and inasmuch as
nothing has been alleged or discussed with regard to the parental
authority of Pedro Alcantara Calvo, which he ha not exercised, and it
having been set forth that the natural father simply claims his child
for the purpose of thus better attending to her maintenance, no
action having been taken by him toward providing the support until,
owing to such negligence, the mother was obliged to demand it; it is
seen that these circumstances, together with the fact of the marriage
of Pedro Alcantara, and that it would be difficult for the mother to
maintain relations with her daughter, all constitute an impediment of
such a nature as to prevent the exercise of the option in the present
case, without prejudice to such decision as may be deemed proper
with regard to the other questions previously cited in respect to which
no opinion should be expressed at this time.

ART. (149) 49. The person obliged to give support may, at his option,
satisfy it, either by paying the pension that may be fixed or by
receiving and maintaining in his own home the person having the
right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give
support shall cease. The failure of the wife to live with her husband is not one
of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code
fix the duties and obligations of the spouses. The spouses must be faithful to,
assist, and support each other. The husband must live with and protect his
wife. The wife must obey and live with her husband and follow him when he
changes his domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may, at his
option, do so by paying her a fixed pension or by receiving and maintaining
her in his own home. May the husband, on account of his conduct toward his
wife, lose this option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The supreme court of
Spain in its decision of December 5, 1903, held:.

The above was quoted with approval in United States and De Jesus vs. Alvir
(9 Phil. Rep., 576), wherein the court held that the rule laid down in article
149 of the Civil Code "is not absolute." but it is insisted that there existed a
preexisting or preferential right in each of these cases which was opposed to
the removal of the one entitled to support. It is true that in the first the person
claiming the option was the natural father of the child and had married a
woman other than the child's mother, and in the second the right to support
had already been established by a final judgment in a criminal case.
Notwithstanding these facts the two cases clearly established the proposition
that the option given by article 149 of the Civil Code may not be exercised in
any and all cases.

That in accordance with the ruling of the supreme court of Spain in

its decisions dated May 11, 1897, November 25, 1899, and July 5,
1901, the option which article 149 grants the person, obliged to
furnish subsistence, between paying the pension fixed or receiving
and keeping in his own house the party who is entitled to the same,
is not so absolute as to prevent cases being considered wherein,
either because this right would be opposed to the exercise of a
preferential right or because of the existence of some justifiable
cause morally opposed to the removal of the party enjoying the
maintenance, the right of selection must be understood as being
thereby restricted.

Counsel for the defendant cite, in support of their contention, the decision of
the supreme court of Spain, dated November 3, 1905. In this case Don
Berno Comas, as a result of certain business reverses and in order no to
prejudice his wife, conferred upon her powers to administer and dispose of
her property. When she left him he gave her all the muniments of title,
mortgage credits, notes, P10,000 in accounts receivable, and the key to the
safe in which he kept a large amount of jewels, thus depriving himself of all
his possessions and being reduced in consequence to want. Subsequently
he instituted this civil action against his wife, who was then living in opulence,
for support and the revocation of the powers heretofore granted in reference

Whereas the only question discussed in the case which gave rise to
this appeal was whether there was any reason to prevent the
exercise of the option granted by article 149 of the Civil Code to the

27

to the administration and disposal of her property. In her answer the wife
claimed that the plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by her were
bilateral and could not be canceled by the plaintiff. From a judgment in favor
of the plaintiff the defendant wife appealed to theAudencia Territorial wherein,
after due trial, judgment was rendered in her favor dismissing the action upon
the merits. The plaintiff appealed to the supreme court and that high tribunal,
in affirming the judgment of theAudencia Territorial, said:

live apart from her without the conjugal abode where it is his place to
be, nor of her conferring power upon him to dispose even of the fruits
of her property in order therewith to pay the matrimonial expenses
and, consequently, those of his own support without need of going to
his wife; wherefore the judgment appealed from, denying the petition
of D. Ramon Benso for support, has not violated the articles of the
Civil Code and the doctrine invoked in the assignments of error 1
and 5 of the appeal.

Considering that article 143, No. 1, of the Civil Code, providing that
the spouses are mutually obliged to provide each other with support,
cannot but be subordinate to the other provisions of said Code which
regulates the family organization and the duties of spouses not
legally separated, among which duties are those of their living
together and mutually helping each other, as provided in article 56 of
the aforementioned code; and taking this for granted, the obligation
of the spouse who has property to furnish support to the one who
has no property and is in need of it for subsistence, is to be
understood as limited to the case where, in accordance with law,
their separation has been decreed, either temporarily or finally and
this case, with respect to the husband, cannot occur until a judgment
of divorce is rendered, since, until then, if he is culpable, he is not
deprived of the management of his wife's property and of the product
of the other property belonging to the conjugal partnership; and

From a careful reading of the case just cited and quoted from it appears quite
clearly that the spouses separated voluntarily in accordance with an
agreement previously made. At least there are strong indications to this
effect, for the court says, "should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage bond and
separate from each other of their own free will." If this be the true basis upon
which the supreme court of Spain rested its decision, then the doctrine
therein enunciated would not be controlling in cases where one of the
spouses was compelled to leave the conjugal abode by the other or where
the husband voluntarily abandons such abode and the wife seeks to force
him to furnish support. That this is true appears from the decision of the
same high tribunal, dated October 16, 1903. In this case the wife brought an
action for support against her husband who had willfully and voluntarily
abandoned the conjugal abode without any cause whatever. The supreme
court, reversing the judgment absolving the defendant upon the ground that
no action for divorce, etc., had been instituted, said:

Considering that, should the doctrine maintained in the appeal

prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said article
56 of the Civil Code, a legal status entirely incompatible with the
nature and effects of marriage in disregard of the duties inherent
therein and disturbing the unity of the family, in opposition to what the
law, in conformity with good morals, has established; and.

In the case at bar, it has been proven that it was Don Teodoro
Exposito who left the conjugal abode, although he claims, without
however proving his contention, that the person responsible for this
situation was his wife, as she turned him out of the house. From this
state of affairs it results that it is the wife who is party abandoned, the
husband not having prosecuted any action to keep her in his
company and he therefore finds himself, as long as he consents to
the situation, under the ineluctable obligation to support his wife in
fulfillment of the natural duty sanctioned in article 56 of the Code in
relation with paragraph 1 of article 143. In not so holding, the trial
court, on the mistaken ground that for the fulfillment of this duty the
situation or relation of the spouses should be regulated in the

Considering that, as the spouses D. Ramon Benso and Doa Adela

Galindo are not legally separated, it is their duty to live together and
afford each other help and support; and for this reason, it cannot be
held that the former has need of support from his wife so that he may

28

manner it indicates, has made the errors of law assigned in the first
three grounds alleged, because the nature of the duty of affording
mutual support is compatible and enforcible in all situations, so long
as the needy spouse does not create any illicit situation of the court
above described.lawphil.net

But it is argued that to grant support in an independent suit is equivalent to

granting divorce or separation, as it necessitates a determination of the
question whether the wife has a good and sufficient cause for living separate
from her husband; and, consequently, if a court lacks power to decree a
divorce, as in the instant case, power to grant a separate maintenance must
also be lacking. The weakness of this argument lies in the assumption that
the power to grant support in a separate action is dependent upon a power to
grant a divorce. That the one is not dependent upon the other is apparent
from the very nature of the marital obligations of the spouses. The mere act
of marriage creates an obligation on the part of the husband to support his
wife. This obligation is founded not so much on the express or implied terms
of the contract of marriage as on the natural and legal duty of the husband;
an obligation, the enforcement of which is of such vital concern to the state
itself that the laws will not permit him to terminate it by his own wrongful acts
in driving his wife to seek protection in the parental home. A judgment for
separate maintenance is not due and payable either as damages or as a
penalty; nor is it a debt in the strict legal sense of the term, but rather a
judgment calling for the performance of a duty made specific by the mandate
of the sovereign. This is done from necessity and with a view to preserve the
public peace and the purity of the wife; as where the husband makes so base
demands upon his wife and indulges in the habit of assaulting her. The pro
tanto separation resulting from a decree for separate support is not an
impeachment of that public policy by which marriage is regarded as so
sacred and inviolable in its nature; it is merely a stronger policy overruling a
weaker one; and except in so far only as such separation is tolerated as a
means of preserving the public peace and morals may be considered, it does
not in any respect whatever impair the marriage contract or for any purpose
place the wife in the situation of a feme sole.

If we are in error as to the doctrine enunciated by the supreme court of Spain

in its decision of November 3, 1905, and if the court did hold, as contended
by counsel for the defendant in the case under consideration, that neither
spouse can be compelled to support the other outside of the conjugal abode,
unless it be by virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not necessarily
control in this jurisdiction for the reason that the substantive law is not in
every particular the same here as it is in Spain. As we have already stated,
articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in
the Philippine Islands. The law governing the duties and obligations of
husband and wife in this country are articles 44 to 78 of the Law of Civil
Marriage of 1870 .In Spain the complaining spouse has, under article 105 of
the Civil Code, various causes for divorce, such as adultery on the part of the
wife in every case and on the part of the husband when public scandal or
disgrace of the wife results therefrom; personal violence actually inflicted or
grave insults: violence exercised by the husband toward the wife in order to
force her to change her religion; the proposal of the husband to prostitute his
wife; the attempts of the husband or wife to corrupt their sons or to prostitute
their daughters; the connivance in their corruption or prostitution; and the
condemnation of a spouse to perpetual chains or hard labor, while in this
jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la
Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was
announced by this court in the case just cited after an exhaustive
examination of the entire subject. Although the case was appealed to the
Supreme Court of the United States and the judgment rendered by this court
was there reversed, the reversal did not affect in any way or weaken the
doctrine in reference to adultery being the only ground for a divorce. And
since the decision was promulgated by this court in that case in December,
1903, no change or modification of the rule has been announced. It is,
therefore, the well settled and accepted doctrine in this jurisdiction.

The foregoing are the grounds upon which our short opinion and order for
judgment, heretofore filed in this case, rest.

G.R. No. 90853

March 13, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO ZAPANTA

y CENTENO @ BEBOT, accused-appellant.

29

The accused, Renato Zapanta, has appealed the decision of the Regional
Trial Court of Cavite, Branch XVII, dated June 30, 1989 in Criminal Case No.
165-87 entitled. "People of the Philippines vs. Renato Zapanta y
Centeno, alias Bebot," finding him guilty of drug-pushing, violation of Section
4, Article II of the Dangerous Drugs Act (Rep. Act No. 6425, as amended),
sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine
of P20,000 without subsidiary imprisonment in case of insolvency, and costs.

San Antonio Cemetery in Bagong Pook. Pat. De la Cruz positioned himself

behind the shanty, while Patrolmen Novero and Baricuatro stayed in front.
Through one window, they could clearly see Zapanta lying on a mat on the
floor near the door. Boter went inside the hut and gave Zapanta the marked
money, whereupon the policemen pounced on them, searched Zapanta's
mat, pillow and blanket and poked into the pile of firewood stacked under the
stairs. Finding one marijuana stick under the mat, they brought Zapanta and
Boter to the police station where an investigation was conducted and Pat.
Novero executed a sworn statement. The marijuana stick was submitted for
examination to the NBI. The forensic chemist confirmed that it was positive
for marijuana. Zapanta was arrested for drug pushing and was confined in
the City Jail.

The information against the accused alleged:

That on or about July 7, 1987, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without legal authority, did, then and there,
wilfully, unlawfully, feloniously, and knowingly deliver and sell to a
poseur-buyer three (3) sticks of dried Indian hemp, otherwise known
as marijuana.

Boter testified during the trial that he lived only four houses away from
Zapanta. He alleged that Zapanta was selling marijuana for a living.
However, he admitted on cross-examination, that Zapanta advised him to
stop smoking marijuana, and that when the policemen raided Zapanta's hut,
he (Boter) still had the marked money in his hand.

Contrary to law. (p. 8, Rollo.)

With the assistance of counsel de oficio, Zapanta pleaded "Not Guilty" to the
charge. After trial, the court rendered the assailed decision.

Both Patrolmen Baricuatro and De la Cruz testified on the arrest and

corroborated Novero's testimony.

Pat. Feliciano de la Cruz testified that in July, 1987, the Criminal Investigation
and Intelligence Division of the Cavite City Police received reports of rampant
selling of marijuana in the vicinity of Tabon, Bagong Pook, prompting them to
conduct a discreet surveillance of persons suspected of selling prohibited
drugs in that neighborhood (p. 20, Rollo).

The accused, Renato Zapanta, testifying in his defense, stated that on July 7,
1987, in the afternoon, he was in his shanty, resting on the floor. He had
been bed-ridden for two years, with an acute kidney infection which has not
been treated medically because of his extreme poverty. His widowed 60-year
old mother, Lourdes, who worked as a cemetery sweeper, and his widowed
sister who worked as a laundrywoman, lived in the house with him. When the
policemen arrived, they poked a gun at him and forced him to get up so they
could search his mat, pillow, blanket and other things. After the search, they
brought him to the City Jail where he was confined for two years since the
time of his arrest. He denied that he was engaged in selling marijuana. The
four P10-bills and two P5-bills which the police found in his pocket had been
given to him by his sister to buy his medicine. He presented a Certification
from the barangay captain, Eddie Torres, attesting to the fact that he was a
law-abiding citizen in the community. However, Torres was not presented as
a witness. Zapanta's sister corroborated him.

On July 7, 1987 at around 4:30 p.m., the police was tipped that Zapanta was
selling marijuana. A "crack-down team" was formed, composed of Pat.
Eduardo Novero, Jr. and Pat. Feliciano de la Cruz, both investigators of the
Criminal Investigation and Intelligence Division, and Pat. Facundo Baricuatro,
Jr., a follow-up investigator of the Detective Bureau. They planned a buy-bust
entrapment operation with the help of an informer, Danilo Vinzon, and a
runner in the person of Romeo Boter, alias Toto Pilay, to buy marijuana
cigarettes from Zapanta. Boter agreed to cooperate and received a marked
P5-bill from the informer, Danny Vinzon, with which to buy a marijuana
cigarette. They proceeded to the house of Zapanta, a one-room shanty in the

30

In this appeal, Zapanta alleges that the trial court erred:

The fact that the marijuana cigarette/s was/were not found on the person of
the accused, that a single marijuana cigarette was "confiscated" from Boter,
not from Zapanta; that the marked P5 bill was not in Zapanta's possession;
and that Zapanta was not selling marijuana when arrested by the police for
he was sick in bed, clearly incapacitated, physically and financially, to
engage in the drug traffic, are circumstances that engender serious doubts
regarding his guilt. The constitutional presumption of his innocence remains
unshaken.

1. in giving credit to the prosecution witnesses despite the gross

inconsistencies in their testimonies;
2. in not requiring the prosecution to place the informer Danilo
Vinzon on the witness stand; and
3. in finding the accused guilty of selling or pushing marijuana
despite his physical disability and his poverty, which render him
incapable of engaging in the business of trading in prohibited drugs.

The drug menace has assumed epidemic proportions in this

country.1wphi1 While we strongly commend the efforts of law-enforcement
officers who are engaged in the difficult and dangerous task of apprehending
and prosecuting drug traffickers, the Court cannot close its eyes nor be deaf
to the many reports of false arrests of innocent persons for extortion and
blackmail, and, in some instances, to satisfy some hidden personal animosity
of the "informer" or law enforcer against the accused. Courts should
therefore be vigilant and alert to recognize trumped up drug charges lest an
innocent man, on the basis of planted evidence, be made to suffer the
unusually severe penalties for drug offenses (People vs. Garcia, 172 SCRA
262; People vs. Taruc, 157 SCRA 179).

We find the appeal meritorious.

There are irreconcilable inconsistencies on material points in the testimonies
of the prosecution witnesses, which erode their credibility and weaken the
case for the prosecution. The runner-buyer, Romeo Boter, during his direct
testimony, declared that the informer, Danny Vinzon, was not with the
policemen when the raid was conducted. On the other hand, Pat. De la Cruz
testified that Danny Vinzon was present during the raid (p. 6, t.s.n., October
24, 1988).

WHEREFORE, the appealed decision is hereby reversed and set aside. The
accused, Renato Zapanta y Centeno, is acquitted of the crime charged, and
his immediate release from custody is hereby ordered unless he is being
held to answer for another offense. Costs de oficio.

Pat. Baricuatro testified on cross-examination that Danilo Vinzon was a

"friend of mine." However, when he was asked later whether he knew Vinzon
personally, he answered: "I do not know him, sir."

SO ORDERED.

The information mentioned three (3) sticks of marijuana cigarette, while Boter
testified that he bought only one (1) stick (pp. 1-24, t.s.n., November 11,
1987). Pat. De la Cruz stated that two and a half marijuana sticks were taken
from Boter (pp. 21-22, t.s.n., November 7, 1988), whereas Boter claimed that
there were five (5) sticks (p. 27, t.s.n., October 24, 1987).
Apart from the uncertainty among the witnesses as to how many marijuana
cigarettes, if any, were found in Zapanta's possession during the raid, the
search in Zapanta's shack was made without a warrant. Hence, the
marijuana cigarette or cigarettes seized in that raid were inadmissible as
evidence (Nolasco vs. Pao, 147 SCRA 510; People vs. Aminnudin 163
SCRA 402).

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.

31

(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. . . .

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.

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

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. 15437111. 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.

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:
Sec. 1. Rules governing civil actions arising from offenses.Except as otherwise provided by law, the following rules shall
he 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;

In this recourse, petitioner contends that the civil action for legal separation
and the incidents consequent thereto, such as, application for
support pendente lite, should be suspended in view of the criminal case for
concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal
Procedure, which states:

(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;

SEC. 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 Section 1 hereof, the following rules
shall be observed:

(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

32

found until final judgment in the criminal proceeding has

been rendered ... (Emphasis supplied)

old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the
offense."

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:

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.
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

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)

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

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

Petitioner lastly seeks to have the respondent Judge disqualified from

hearing the case, as the grant of supportpendente lite and the denial of the
motion to suspend hearings in the case, are taken by the petitioner as a

33

disregard of applicable laws and existing doctrines, thereby showing the

respondent Judge's alleged manifest partiality to private respondent.

husbands father at Rizal Avenue, Manila, and then moved their residence to
the municipality of Maycawayan, Bulacan. Out of this union were born Felix
Luis del Barrio and Maria Teresa del Barrio who must be actually 11 and 9

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.

years old, respectively.

It seems that during their married life this couple had frequent quarrels, on
which occasions the husband maltreated his wife by deed, and because the
latter was unable to bear such punishment, in 1947 they unceremoniously
separated, the wife staying in Meycawayan and the husband in the house of
his father at 2110 Rizal Avenue, Manila. Notwithstanding this separation of

WHEREFORE, the instant petition is hereby DISMISSED. Costs against

petitioner.

dwellings they met each other in the City of Manila, and the wife claims that
in December, 1950, or January, 1951, and in September of the latter year
she was again maltreated by her husband. This moved her to institute the
present action alleging in the petition filed on October 26, 1951, in the Court

SO ORDERED.

of First Instance of Bulacan, among other things, that the system of conjugal
partnership of gains governs her marriage to the respondent; that no property
has been acquired during the marriage of the petitioner and respondent
except a portion of a residential land located in Meycawayan, Bulacan, from
No. 12506-R. April 15, 1955

which no rentals are derived; that respondent has made several attempts on
the life of the herein petitioner which compelled her to live separately and

FELICIDAD P. MUOZ, petitioner and appellant, vs. JOSE DEL BARRIO,

respondent and appellee

apart from the respondent since 1947; and that respondent has not provided
support for petitioner and their children. Hence she prays the court:

APPEAL from a judgment of the Court of First Instance of Bulacan. Ysip, J.

(a) that a decree be entered for the legal separation of petitioner from
respondent;

Manuel Y. Macias for petitioner and appellant.

Jose del Barrio in his own behalf as respondent and appellee.

(b) that petitioner be awarded the custody of their minor children Felix del
Barrio and Maria Teresa del Barrio by herein respondent;

FELIX, J.:

(c) that respondent be directed to contribute to the support of said children;

(d) that petitioner be allowed costs, plus attorneys fees in the sum of P200 in
this instance, to be charged against the conjugal partnership property
referred to in paragraph 4 above, pursuant to Article 293 of the Civil Code of

Felicidad P. Muoz and Jose del Barrio were married civilly before Judge
Natividad Almeda Lopez of the Municipal Court of Manila on September 24,

the Philippines;
(e) that whatever shall remain of said conjugal partnership property after

1942 and again canonically on October 24 of that year before the Catholic
Minister Fr. Antonio Albrecht. Since their marriage the couple lived together

deduction of the expenses mentioned in the next preceding paragraph, be

divided and adjudicated in equal parts to herein petitioner and respondent

as husband and wife for the ensuing six months in the house of the

34

and the conjugal partnership dissolved and liquidated; and

Art. 97. A petition for legal separation may be filed:

(f) that petitioner be granted such further and complete relief as may be just
and equitable in the premises.

(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.

On November 12, 1951, respondent filed his answer to the petition denying
the averments made in his wifes pleading and prayed the court that the

In the case at bar the alleged maltreatments to the wife by the husband

petition be denied and dismissed for lack of merit, it being contrary to moral
and good customs and not authorized or sanctioned by statute, praying

occurred before their separation a mensa et thoro in 1947 must not have
amounted to said husbands attempts on the life of his wife, since the latter

further for such other relief as provided by law, with costs de oficio.
After the issues were joined, the court, in compliance with the provisions of

did not institute any action for the legal separation from him upon the
effectivity of the Civil Code on August 30, 1950, and this case was only

Article 98 of the new Civil Code, took every feasible step towards the
reconciliation of the spouses, but His Honor failed in his purpose by reason

brought to court on October 26, 1951, after the alleged maltreatment of

September 1951 had taken place. Therefore, in this appeal we only have to

of the determined refusal of the wife to yield to the efforts of the Judge to that
end. Hence the case proceeded with the intervention of the office of the

determine whether the maltreatments that appellant suffered at the hands of

the respondent after their separation of dwelling, which allegedly occurred in

Provincial Fiscal of Bulacan. After hearing the Court rendered decision the
dispositive part of which, translated into English, is as follows:

December, 1950, or January, 1951, and September of the latter year, furnish
ground for the legal separation applied for under paragraph 2 of Article 97 of
the Civil Code.

IN VIEW OF THESE CONSIDERATIONS, the Court is of the opinion and so

holds that the present complaint must be, as it is hereby, dismissed for lack

In appellants brief mention is made of the testimonies of Jovita Faustino, a

of merits; without costs.

tenant of apartment No. 2068 Ipil St., Manila, owned by appellants father,
Felix Muoz, of Meycawayan, Bulacan, and referring to the quarrel that the

Not satisfied with the outcome of her petition, Felicidad P. Muoz appealed

spouses had in March of 1950; of Faustino Mallari, patrolman in the Manila

Police Department, referring to the spouses encounter in December, 1950,

from said judgment, and in this instance her counsel maintains that the lower
court erred:

or January, 1951; of appellants counsel, Attorney Manuel M. Macias, relative

to the occasion in which the spouses met at his office on or about September

1. In not finding that respondent-appellee had made attempts on the life of

petitioner-appellant;

30, 1951; and of appellant herself. The maltreatment referred to by Jovita

Faustino consisted merely in appelles giving a fist blow on the face of

2. In not decreeing legal separation and in dismissing petitioner-appellants

action without costs; and

appellant. Patrolman Mallari did not witness the maltreatment on which he

testified, for he was called by appellant to intervene in the quarrel between

3. In not awarding attorneys fees to petitioner-appellant.

the spouses when it was already over, and the only thing he noticed was that
she was crying and that there were certain scratches on her brow and

The new Civil Code prescribes the following:

cheeks and on certain points of the neck which were blackened

(ecchymosis). About the quarrel spoken of by Attorney Macias, the latter
declared that appelle boxed his wife on the abdomen, pulled her hair and had

35

also twisted her neck when said attorney, Leoncio Santos and Jose Enriquez

intent and precludes the crime from constituting frustrated homicide. (U.S.

separated petitioner and respondent.

vs. Taguibao, 1 Phil., 16).

An attempt on the life of a person implies that the actor in the attempt is

Nothing is more difficult to discover than intention, this being a mental act;

moved by an intention to kill the person against whom the attempt is made,
and after a careful examination of the evidence produced by appellant we

we are only able to deduce it from the external acts performed by the agent,
and when these acts have naturally given a definite result, courts should not

cannot make up our mind to declare that the alleged maltreatments of

respondent to his wife were moved by such intent to kill. On the contrary, we

without clear and conclusive proof, hold that some other result was intended
(U.S. vs. Mendoza, 38 Phil., 691, 693)> It is always to be remembered that

share the opinion of the trial judge who declared that said maltreatments
cannot constitute attempts on the life of appellant as provided in Article 97,

the first and simplest presumption which, as stated above, the law draws
with respect to human conduct, in connection with acts of violence, is that the

No.2, of the Civil Code of the Philippines.

actor intended the natural consequence of his acts; and this presumption
should be implied in a fair and rational way, with proper regard to all the

From the second edition of the Revised Penal Code by Dean Vicente J.
Francisco Book II, part 1, pp. 671-672 we copy the following:

details of the act, and without the suppression of any of its elements. ***
Likewise, where the accused inflicted a scalp wound with a hatchet and

In the prosecutions for frustrated or attempted homicide, the intention to take

struck at his victim a second time, it should not be inferred, from the mere
fact that a hatchet in the hands of an infuriated man is a deadly weapon, that

life must be proved with the same degree of certainty as is required with
respect to other elements of the crime, and the inference of such intent

the accused really intended to kill (People vs. Villanueva, 51 Phil., 488).
When criminal liability is made to consist in the intention to perform an act

should not be drawn in the absence of circumstances sufficient to prove such

intention beyond reasonable doubt (People vs. Villanueva, 51 Phil., 448). It is

which was not realized, the facts from which it is claimed that intention
sprang must be such as to exclude all contrary supposition. When this

absolutely necessary that the homicidal intent be evidenced by adequate

acts which at the time of their execution were unmistakably calculated to

intention is not necessarily disclosed by the acts performed by the defendant,

greater importance should not be given to such acts than that which they in

produce the death of the victim, since the crime of frustrated or attempted
homicide is one in which, more than in any other case, the penal law is

themselves import, nor should the defendants liability be extended beyond

that which is actually involved in the material results of the act. (U.S. vs

based upon the material results produced by the criminal act. It is not proper
or just to attribute to the delinquent a specific intent to commit the higher

Mendoza, 38 Phil., 691).

crime in the absence of proof to justify such a conclusion (U.S. vs. Taguibao,
1 Phil., 16). Conformably to this rule, therefore, an accused who, upon

In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the
land said the following:

seeing a man plowing the land which was the subject matter of a dispute,
immediately attacks the latter, inflicting blows upon his neck with the back of

Homicide; Criminal intent. When the case affords no good reason for

the bolo, must be convicted of physical injuries, and not of frustrated

homicide, because the mere fact that the assault was committed with the

holding that the assailants positively intended to kill the injured party in spite
of the persistent and repeated beatings they gave him, however much they

back instead of the cutting edge of the bolo negatives the idea of homicidal

plainly demonstrated their intention of doing him injury, by striking him in an

inhuman manner on various parts of his body, it is improper to classify the

36

crime as either frustrated or attempted homicide. A personal assault must be

Jose T. Nery for plaintiff-appellee.

punished according to its consequences and the harm done to the victim, for
the penal law in this class of crimes is only concerned with the material

The City fiscal for defendant-appellant.

results produced by the transgression, unless the perverse intention of taking

the victims life be clearly manifested.

Cesar J. Macaraig in his own behalf.

In the maltreatments complained of in this case, the respondent only used at

most his bare fists or hands and desisted from giving further chastisement

DIZON, J.:

after the first blows were given at the spur of the impulse. It is argued,
however, that this is a civil case and that appellant is only bound to prove her

Appeal taken by Elena Contreras from a decision of the Juvenile and

Domestic Relations Court of Manila in Civil Case No. 00138 dismissing her
complaint upon the ground that the same was filed more than one year from
and after the date on which she had become cognizant of the cause for legal
separation.

right of action by preponderance of evidence and not by evidence beyond

reasonable doubt upon which a conviction for attempted paricide would rest,
and though we may, to a certain extent, agree with counsel for appellant on
this point, yet we cannot help but declare that in so far as the intent to kill is
concerned, it must be established with clear and convincing evidence, and
that in the case at bar said intent has not been proved by such evidence.

The following, facts found by the trial court are not in dispute:
Plaintiff and defendant were married on March 16, 1952 in
the Catholic Church of Quiapo, Manila. Out of their Marriage,
three children were born: Eusebio C. Macaraig, on January
11, 1953; Victoria C. Macaraig, on March 26, 1956; and
Alexander C. Macaraig, on August 4, 1958. All the children
are in the care of plaintiff wife.

Petitioner-appellant herself should not have been so sure of her evidence

when instead of the present action she dared not cause the prosecution of
her husband for attempted parricide as a means of establishing her right to
secure the legal separation she applies for in this case.
Wherefore, the decision appealed from, being in conformity with the law and
the evidence of record, is hereby affirmed without pronouncement as to

Sometime in 1958, the couple acquired rights, as lessee and

purchaser under a conditional sale agreement, to own a
house and lot, known as Lot 4, Block 8 of the Philamlife
Homes in Quezon City which they transferred in favor of
their three children on October 29, 1958 (Exh. F). Installment
payments are being made by plaintiff's father. The spouses
own no other conjugal property.

costs.
It is so ordered.

G.R. No. L-29138 May 29, 1970

Immediately before the election of 1961, defendant was
employed as manager of the printing establishment owned
by plaintiff's father known as the MICO Offset. In that
capacity, defendant met and came to know Lily Ann Alcala,
who place orders with MICO Offset for propaganda materials

ELENA CONTRERAS, plaintiff-appellant,

vs.
CESAR J. MACARAIG, defendant-appellee.

37

for Mr. Sergio Osmea, who was then a Vice-Presidential

candidate. After the elections of 1961, defendant resigned
from MICO Offset to be a special agent at Malacaang. He
began to be away so often and to come home very late.
Upon plaintiff's inquiry, defendant explained that he was out
on a series of confidential missions.

Plaintiff then entreated her father-in-law, Lucilo Macaraig, to

intercede with defendant and to convince him to return to his
family. Mr. Macaraig, after talking to his son and seeking him
with the latter's child told plaintiff that he could not do
anything.
In November, 1963, plaintiff requested the cooperation of
defendant's older sister, Mrs. Enriqueta Majul, and the latter
obliged and arranged a meeting at her home in Buendia
between plaintiff and Lily Ann Alcala. Lily Ann said she was
willing to give up defendant as she had no desire to be
accused criminally but it was defendant who refused to
break relationship with her.

In September, 1962, Avelino Lubos, driver of the family car,

told plaintiff that defendant was living in Singalong with Lily
Ann Alcala. When defendant, the following October, returned
to the conjugal home, plaintiff refrained from verifying Lubos'
report from defendant in her desire not to anger nor drive
defendant away. Although plaintiff, in April 1963, also
received rumors that defendant was seen with a woman who
was on the family way on Dasmarias St., she was so happy
that defendant again return to the family home in May, 1963
that she once more desisted from discussing the matter with
him because she did not wish to precipitate a quarrel and
drive him away. All this while, defendant, if and whenever he
returned to the family fold, would only stay for two or three
days but would be gone for a period of about a month.

In the early part of December, 1963, plaintiff, accompanied

by her two children, Victoria and Alexander, and by Mrs.
Leticia Lagronio went to talk to defendant at his place of
work on Espaa Extension in front of Quezon Institute. They
repaired to Victoria Peak, a nearby restaurant, where plaintiff
pleaded with defendant to give up Lily Ann Alcala and to
return to the conjugal home, assuring him that she was
willing to forgive him. Defendant informed plaintiff that he
could no longer leave Lily Ann and refused to return to his
legitimate family.

After plaintiff received reports that Lily Ann Alcala had given
birth to a baby, she sent Mrs. Felicisima Antioquia, her
father's employee, to verify the reports. The latter was driven
by Lubos to the house in Singalong and between 5:00 and
6:00 o'clock that afternoon, she saw defendant was carrying
a baby in his arms. Mrs. Antioquia then went to the parish
priest of Singalong where she inquired about the child of
Cesar Macaraig and Lily Ann Alcala and she was given a
copy of the baptismal certificate of Maria Vivien Mageline
Macaraig (Exh. G) which she gave to plaintiff sometime in
October, 1963.

On December 14, 1963, plaintiff instituted the present action

for legal separation. When defendant did not interpose any
answer after he was served summons, the case was referred
to the Office of the City Fiscal of Manila pursuant to the
provisions of Article 101 of the Civil Code. After a report was
received from Asst. Fiscal Primitivo M. Pearanda that he
believed that there was no collusion present, plaintiff was
allowed to present her evidence. Defendant has never
appeared in this case.
The reasons relied upon by the trial court in dismissing the complaint are set
forth in the appealed decision as follows:

38

Under the facts established by plaintiff's evidence, although

the infidelity of the husband is apparent, yet the case will
have to be dismissed. Article 102 provides that, an action for
legal separation cannot be instituted except within one year
after plaintiff "became cognizant of the cause." In the
absence of a clear-cut decision of the Supreme Court as to
the exact import of the term "cognizant," the practical
application of said Article can be attended with difficulty. For
one thing; that rules might be different in case of adultery,
which is an act, and for concubinage, which may be a
situation or a relationship.

would seldom come home. He allayed plaintiff's suspicions

with the explanation that he had been away on 'confidential
missions.' However, in September, 1962, Avelino Lubos,
plaintiff's driver, reported to plaintiff that defendant was living
in Singalong with Lily Ann Alcala. As a matter of fact, it was
also Lubos who brought Mrs. F. Antioquia (when plaintiff had
asked to verify the reports) to the house in Singalong where
she saw defendant, Lily Ann and the baby.
The requirement of the law that a complaint for legal
separation be filed within one year after the date plaintiff
become cognizant of the cause is not of prescriptive nature,
but is of the essence of the cause of action. It is consonant
with the philosophy that marriage is an inviolable social
institution so that the law provides strict requirements before
it will allow a disruption of its status.

In respect of concubinage, the word 'cognizant' may not

connote the date when proof thereof sufficient to establish
the cause before a court of law is possessed. Otherwise, the
one year period would be meaningless for practical purposes
because all a wife would have to do would be to claim that
the necessary proof was secured only within one year before
the filing of the complaint. On the other hand, it should be
hard to concede that what the law envisages (and, in a way,
encourages) is the filing of a complaint within one year after
the innocent spouses has received information of the other's
infidelity, howsoever baseless the report might be.

In the instant action, the Court has to find that plaintiff

became cognizant of defendant's infidelity in September,
1962. Plaintiff made successive attempts to induce the
husband to amend his erring ways but failed. Her desire to
bring defendant back to the connubial fold and to preserve
family solidarity deterred her from taking timely legal action.

The Court believes that the correct rule lies between the two
extremes. At the time a wife acquired information, which can
be reasonably relied upon as true, that her husband is living
in concubinage with another woman, the one-year period
should be deemed to have started even if the wife shall not
then be in possession of proof sufficient to establish the
concubinage before a court of law. The one-year period may
be viewed, inter alia, as an alloted time within which proof
should be secured. It is in the light of this rule that the Court
will determine whether or not plaintiff's action for legal
separation has prescribed.

The only question to be resolved is whether the period of one year provided
for in Article 102 of the Civil Code should be counted, as far as the instant
case is concerned from September 1962 or from December 1963.
Computing the period of one year from the former date, it is clear that
plaintiff's complaint filed on December 14, 1963 came a little too late, while
the reverse would be true if said period is deemed to have commenced only
in the month of December 1963.
The period of "five years from after the date when such cause occurred" is
not here involved.
Upon the undisputed facts it seems clear that, in the month of September
1962, whatever knowledge appellant had acquired regarding the infidelity of
her husband, that is, of the fact that he was then living in Singalong with Lily

After her husband resigned from MICO Offset to be a special

agent in Malacaan, subsequent to the elections of 1961, he

39

Ann Alcala, was only through the information given to her by Avelino Lubos,
driver of the family car. Much as such hearsay information had pained and
anguished her, she apparently thought it best and no reasonable person
may justifiably blame her for it not to go deeper into the matter herself
because in all probability even up to that time, notwithstanding her husband's
obvious neglect of his entire family, appellant still cherished the hope
however forlorn of his coming back home to them. Indeed, when her
husband returned to the conjugal home the following October, she purposely
refrained from bringing up the matter of his marital infidelity "in her desire not
to anger nor drive defendant away" quoting the very words of the trial
court. True, appellant likewise heard in April 1963 rumors that her husband
was seen with a woman on the family way on Dasmarias Street, but failed
again to either bring up the matter with her husband or make attempts to
verify the truth of said rumors, but this was due, as the lower court itself
believed, because "she was so happy that defendant again returned to the
family home in May 1963 that she once more desisted from discussing the
matter with him because she did not wish to precipitate a quarrel and drive
him away." As a matter of fact, notwithstanding all these painful informations
which would not have been legally sufficient to make a case for legal
separation appellant still made brave if desperate attempts to persuade
her husband to come back home. In the words of the lower court, she
"entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and
to convince him to return to his family" and also "requested the cooperation
of defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but
all that was of no avail. Her husband remained obdurate.

willing to forgive him. Defendant informed plaintiff that he

could no longer leave Lily Ann and refused to return to his
legitimate family.
From all the foregoing We conclude that it was only on the
occasion mentioned in the preceding paragraph when her
husband admitted to her that he was living with and would
no longer leave Lily Ann to return to his legitimate family that
appellant must be deemed to be under obligation to decide
whether to sue or not to sue for legal separation, and it was
only then that the legal period of one year must be deemed
to have commenced.
WHEREFORE, the decision appealed from is set aside and another is
hereby rendered holding that appellant is entitled to legal separation as
prayed for in her complaint; and the case is hereby remanded to the lower
court for appropriate proceedings in accordance with law.

Lapuz-Sy vs. Eufemio

43 SCRA 177

FACTS:

After a careful review of the record, We are persuaded that, in the eyes of the
law, the only time when appellant really became cognizant of the infidelity of
her husband was in the early part of December 1963 when, quoting from the
appealed decision, the following happened

Carmen Lapuz-Sy filed a petition for legal separation against

Eufemio Eufemio on August 1953. They were married civilly on

In the early part of December, 1963, plaintiff, accompanied

by her two children, Victoria and Alexander, and by Mrs.
Leticia Lagronio went to talk to defendant at his place of
work on Espaa Extension in front of Quezon Institute. They
repaired to Victoria Peak, a nearby restaurant, where plaintiff
pleaded with defendant to give up Lily Ann Alcala and to
return to the conjugal home, assuring him that she was

September 21, 1934 and canonically after nine days. They had
lived together as husband and wife continuously without any
children until 1943 when her husband abandoned her. They
acquired properties during their marriage. Petitioner then
discovered that her husband cohabited with a Chinese woman

40

named Go Hiok on or about 1949. She prayed for the issuance of a

An action for legal separation is abated by the death of the plaintiff,

decree of legal separation, which among others, would order that

even if property rights are involved. These rights are mere effects

the defendant Eufemio should be deprived of his share of the

of decree of separation, their source being the decree itself; without

conjugal partnership profits.

the decree such rights do not come into existence, so that before
the finality of a decree, these claims are merely rights in

Eufemio counterclaimed for the declaration of nullity of his

expectation. If death supervenes during the pendency of the action,

marriage with Lapuz-Sy on the ground of his prior and subsisting

no decree can be forthcoming, death producing a more radical and

marriage with Go Hiok. Trial proceeded and the parties adduced

definitive separation; and the expected consequential rights and

their respective evidence. However, before the trial could be

claims would necessarily remain unborn.

completed, respondent already scheduled to present surrebuttal

The petition of Eufemio for declaration of nullity is moot and

evidence, petitioner died in a vehicular accident on May 1969. Her

academic and there could be no further interest in continuing the

counsel duly notified the court of her death. Eufemio moved to

same after her demise, that automatically dissolved the questioned

dismiss the petition for legal separation on June 1969 on the

union. Any property rights acquired by either party as a result of

grounds that the said petition was filed beyond the one-year period

Article 144 of the Civil Code of the Philippines 6 could be resolved

provided in Article 102 of the Civil Code and that the death of

and determined in a proper action for partition by either the

Carmen abated the action for legal separation. Petitioners counsel

appellee or by the heirs of the appellant.

moved to substitute the deceased Carmen by her father, Macario

Lapuz.

Bugayong vs. Ginez

GR No. 10033, December 28, 1956

ISSUE: Whether the death of the plaintiff, before final decree in an

action for legal separation, abate the action and will it also apply if
the action involved property rights.

FACTS:

HELD:

Benjamin Bugayong, a serviceman in the US Navy was married with

Leonila Ginez on August 1949 at Pangasinan while on furlough
leave. Immediately after the marriage, they lived with the sisters

41

of Bugayong in said municipality before he went back to duty. The

ISSUE: Whether there was condonation between Bugayong and

couple came to an agreement that Ginez would stay with his sisters

Ginez that may serve as a ground for dismissal of the action.

who later moved in Manila. On or about July 1951, she left the
dwelling of the sisters-in-law and informed her husband by letter

HELD:

that she had gone to Pangasinan to reside with her mother and
later on moved to Dagupan to study in a local college.

Condonation is the forgiveness of a marital offense constituting a

ground for legal separation. A single voluntary act of marital

Petitioner then began receiving letters from Valeriana Polangco,

intercourse between the parties ordinarily is sufficient to constitute

(plaintiffs sister-in-law) and some from anonymous writers, which

condonation and where the parties live in the same house, it is

were not produced at the hearing, informing him of alleged acts of

presumed that they live on terms of matrimonial cohabitation.

infidelity of his wife. He admitted that his wife informed him by

letter that a certain Eliong kissed her. All these communications,

Furthermore, Art. 100 of the Civil Code states that the legal

prompted him in October 1951 to seek the advice of the Navy

separation may be claimed only by the innocent spouse, provided

Chaplain who asked him to consult with the navy legal department.

there has been no condonation of or consent to the adultery or

concubinage.

In August 1952, Bugayong went to Pangasinan and looked for his

wife. They met in the house of the defendants godmother. They
proceeded to the house of Pedro, cousin of the plaintiff where they
De la Via v. Villareal, 41 Phil 13
Facts
On September 17, 1917, Narcisa Geopano filed a complaint in the Court
of First Instance of the Provinceof Iloilo against Diego de la Via
for divorce, partition of conjugal property, and alimony pendente lite
inthe sum of P400/month. She alleged among others that since the year
1913 and up to the date of thecomplaint, he defendant had been
committing acts of adultery with one Ana Calog, sustaining illicitrelations
with her and having her as his concubine, with public scandal and in
disgrace of the plaintiff.That because of said illicit relations, the
defendant ejected the plaintiff from the conjugal home, forwhich

stayed for 1 day and 1 night as husband and wife. The next day,
they slept together in their own house. He tried to verify with
Leonila the truth on the information he received but instead of
answering, she merely packed up and left which he took as a
confirmation of the acts of infidelity. He then filed a complaint for
legal separation.

42

LUIS MA. ARANETA, Petitioner, vs. HONORABLE

HERMOGENES CONCEPCION, as judge of the Court of First
Instance of Manila, Branch VI and EMMA BENITEZ
ARANETA, Respondents.

reason she was obliged to live in the city of Iloilo, where she had since
established her habitualresidence. That the plaintiff, scorned by her
husband, the defendant, had no means of support and wasliving only at
the expense of one of her daughters.Subsequent to the filing of the
said complaint, Narcisa Geopano, the plaintiff therein, presented amotion
alleging, among other things, that since the filing of her complaint she
had personal knowledgethat the defendant was trying to alienate or
encumber the property which belonged to the conjugalpartnership
between the plaintiff and the defendant, to the prejudice of
the plaintiff, and prayed that apreliminary injunction be issued against
the defendant restraining and prohibiting him in the premises.CFI
granted preliminary injunction but respondent appealed claiming that
CFI Iloilo has no jurisdictionsince his wife should follow his domicile and
that the judge has exceeded his power in granting thepreliminary
injunction.
Issue:
1.

DECISION
LABRADOR, J.:
The main action was brought by Petitioner against his wife, one of
the Respondent herein, for legal separation on the ground of
adultery. After the issues were joined Defendant therein filed an
omnibus petition to secure custody of their three minor children, a
monthly support of P5,000 for herself and said children, and the
return of her passport, to enjoin Plaintif from ordering his hirelings
from harassing and molesting her, and to have Plaintif therein pay
for the fees of her attorney in the action. The petition is supported
by her affidavit. Plaintif opposed the petition, denying the
misconduct imputed to him and alleging that Defendant had
abandoned the children;chan roblesvirtualawlibraryalleging that
conjugal properties were worth only P80,000, not one million pesos
as alleged byDefendant; chan roblesvirtualawlibrarydenying the
taking of her passport or the supposed vexation, and contesting her
right to attorneys fees. Plaintif prayed that as the petition for
custody and support cannot be determined without evidence, the
parties be required to submit their respective evidence. He also
contended that Defendant is not entitled to the custody of the
children as she had abandoned them and had committed adultery,
that by her conduct she had become unfit to educate her children,
being unstable in her emotions and unable to give the children the
love, respect and care of a true mother and without means to
educate them. As to the claim for support, Plaintif claims that
there are no conjugal assets and she is not entitled to support
because of her infidelity and that she was able to support herself.
Affidavits and documents were submitted both in support and
against the omnibus petition.

WON a married woman ever acquire a residence or domicle separate

from that of her husbandduring the existence of marriage?2.
WON the wife may obtain a preliminary injunction against the husband
restraining andprohibiting him from alienating or encumbering any part
of the conjugal property during thependency of the action
Ruling:
YES, when the husband has given enough reason for her to do so as
example, cause of divorce.- The law will recognize a wife as having a
separate existence, and separate interests, and separaterights, in those
cases where the express object of all proceedings is to show that the
relation itself oughtto be dissolved- The law making the domicile of the
husband that of the wife is applicable only to their relations withthird
parties, and has no application in cases of actual separation and
controversy between themselvesas to the temporary or permanent
severance of the marriage ties by judicial proceedings.

The Respondent judge resolved the omnibus petition, granting the

custody of the children toDefendant and a monthly allowance of
P2,300 for support for her and the children, P300 for a house and
P2,000 as attorneys fees. Upon refusal of the judge to reconsider
the order, Petitionerfiled the present petition for certiorari against
said order and for mandamus to compel theRespondent judge to
require the parties to submit evidence before deciding the omnibus

________________________

43

petition. We granted a writ of preliminary injunction against the

order.

It may be noted that since more than six months have elapsed
since the filing of the petition the question offered may not be
allowed. It is, however, believed that the reasons for granting the
preliminary injunction should be given that the scope of the article
cited may be explained.

The main reason given by the judge, for refusing Plaintifs request
that evidence be allowed to be introduced on the issues, is the
prohibition contained in Article 103 of the Civil Code, which reads
as follows:chanroblesvirtuallawlibrary

It is conceded that the period of six months fixed therein Article

103 (Civil Code) is evidently intended as a cooling off period to
make possible a reconciliation between the spouses. The recital of
their grievances against each other in court may only fan their
already inflamed passions against one another, and the lawmaker
has imposed the period to give them opportunity for dispassionate
reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other
provisions such as the determination of the custody of the children
and alimony and support pendente lite according to the
circumstances. (Article 105, Civil Code.) The law expressly enjoins
that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to
actual facts, rank in justice may be caused.

ART. 103. An action for legal separation shall in no case be tried

before six months shall have elapsed since the filing of the
petition.
Interpreting the spirit and policy of the provision the trial judge
says:chanroblesvirtuallawlibrary
This provision of the code is mandatory. This case cannot be tried
within the period of six months from the filing of the complaint. The
court understands that the introduction of any evidence, be it on
the merits of the case or on any incident, is prohibited. The law, up
to the last minute, exerts efforts at preserving the family and the
home from utter ruin. Interpreting the intent of said article, the
court understands that every step it should take within the period
of six months above stated should be taken toward reconciling the
parties. Admitting evidence now will make reconciliation difficult if
not impossible. In this case the court should act as if nothing yet
had happened. The children must be given for custody to him or
her who by family custom and tradition is the custodian of the
children. The court should ignore that Defendant had committed
any act of adultery or the Plaintif, any act of cruelty to his wife.
The status quo of the family must be restored as much as possible.
In this country, unlike perhaps in any other country of the globe, a
family or a home is a petite corporation. The father is the
administrator who earns the family funds, dictates rules in the
home for all to follow, and protects all members of his family. The
mother keeps home, keeps children in her company and custody,
and keeps the treasure of that family. In a typical Filipino family, the
wife prepares home budget and makes little investment without the
knowledge of her husband. A husband who holds the purse is unFilipino. He is shunned in Filipino community. The court therefore, in
taking action on petition No. 1 should be guided by the above
considerations. (pp. 116-117, Record on Appeal.)

Take the case at bar, for instance. Why should the court ignore the
claim of adultery byDefendant in the face of express allegations
under oath to that effect, supported by circumstantial evidence
consisting of letter the authenticity of which cannot be denied. And
why assume that the children are in the custody of the wife, and
that the latter is living at the conjugal dwelling, when it is precisely
alleged in the petition and in the affidavits, that she has abandoned
the conjugal abode? Evidence of all these disputed allegations
should be allowed that the discretion of the court as to the custody
and alimony pendente lite may be lawfully exercised.
The rule is that all the provisions of the law even if apparently
contradictory, should be allowed to stand and given effect by
reconciling them if necessary.
The practical inquiry in litigation is usually to determine what a
particular provision, clause or word means. To answer it one must
proceed as he would with any other composition construe it with
reference to the leading idea or purpose of the whole instrument. A
statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intend. Consequently, each
part of section should be construed in connection with every other
part or section so as to produce a harmonious whole. Thus it is not
proper to confine interpretation to the one section to be

44

construed. (Southerland, Statutory Construction section 4703, pp.

336-337.)

Civil Code provision, which reads thus: "An action for legal separation shall in
no case be tried before six months shall have elapsed since the filing of the
petition." He therefore ordered the suspension, upon the plea of the other
respondent the husband Clemente G. Ramos, of the hearing on a motion for
a writ of preliminary mandatory injunction filed by petitioner at the same time
the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos,
the wife who brought the action for legal separation would dispute such a
ruling. Hence, this certiorari proceeding. As will be shown later there is
justification for such a move on the part of petitioner. The respondent Judge
ought to have acted differently. The plea for a writ of certiorari must be
granted.

Thus the determination of the custody and alimony should be given

effect and force provided it does not go to the extent of violating
the policy of the cooling off period. That is, evidence not affecting
the cause of the separation, like the actual custody of the children,
the means conducive to their welfare and convenience during the
pendency of the case, these should be allowed that the court may
determine which is best for their custody.
The writ prayed for is hereby issued and the Respondent judge or
whosoever takes his place is ordered to proceed on the question of
custody and support pendente lite in accordance with this opinion.
The courts order fixing the alimony and requiring payment is
reversed. Without costs.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No.
5274 in the sala of respondent Judge against respondent Clemente Ramos
for legal separation, on concubinage on the respondent's part and an attempt
by him against her life being alleged. She likewise sought the issuance of a
writ of preliminary mandatory injunction for the return to her of what she
claimed to be her paraphernal and exclusive property, then under the
administration and management of respondent Clemente Ramos. There was
an opposition to the hearing of such a motion, dated July 3, 1971, based on
Article 103 of the Civil Code. It was further manifested by him in a pleading
dated July 16, 1971, that if the motion asking for preliminary mandatory
injunction were heard, the prospect of the reconciliation of the spouses would
become even more dim. Respondent Judge ordered the parties to submit
their respective memoranda on the matter. Then on September 3, 1971,
petitioner received an order dated August 4, 1971 of respondent Judge
granting the motion of respondent Ramos to suspend the hearing of the
petition for a writ of mandatory preliminary injunction. That is the order
complained of in this petition forcertiorari. Respondents were required to
answer according to our resolution of October 5, 1971. The answer was filed
December 2 of that year. Then on January 12, 1972 came a manifestation
from parties in the case submitting the matter without further arguments.

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the
Court of First Instance of Negros Oriental and CLEMEN G.
RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.

FERNANDO, J.:p
The question raised in this petition for certiorari is whether or not Article 103
of the Civil Code prohibiting the hearing of an action for legal separation
before the lapse of six months from the filing of the petition, would likewise
preclude the court from acting on a motion for preliminary mandatory
injunction applied for as an ancillary remedy to such a suit. Respondent
Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental,
answered the question in the affirmative, in view of the absolute tenor of such

After a careful consideration of the legal question presented, it is the holding

of this Court that Article 103 the Civil Code is not an absolute bar to the
hearing motion for preliminary injunction prior to the expiration of the sixmonth period.

45

1. It is understandable why there should be a period during which the court is

precluded from acting. Ordinarily of course, no such delay is permissible.
Justice to parties would not thereby be served. The sooner the dispute is
resolved, the better for all concerned. A suit for legal separation, however, is
something else again. It involves a relationship on which the law for the best
reasons would attach the quality of permanence. That there are times when
domestic felicity is much less than it ought to be is not of course to be
denied. Grievances, whether fancied or real, may be entertained by one or
both of the spouses. There may be constant bickering. The loss affection on
the part of one or both may be discernible. Nonetheless, it will not serve
public interest, much less the welfare of the husband or the wife, to allow
them to go their respective ways. Where there are offspring, the reason for
maintaining the conjugal union is even more imperative. It is a mark of
realism of the law that for certain cases, adultery on the part of the wife and
concubinage on the part of the husband, or an attempt of one spouse against
the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better
off apart. A suit for legal separation lies. Even then, the hope that the parties
may settle their differences is not all together abandoned. The healing balm
of time may aid in the process. Hopefully, the guilty parties may mend his or
her ways, and the offended party may in turn exhibit magnanimity. Hence, the
interposition of a six-month period before an action for legal separation is to
be tried.

property need not be left unresolved even during such six-month period. An
administrator may even be appointed for the management of the property of
the conjugal partnership. The absolute limitation from which the court suffers
under the preceding article is thereby eased. The parties may in the
meanwhile be heard. There is justification then for the petitioner's insistence
that her motion for preliminary mandatory injunction should not be ignored by
the lower court. There is all the more reason for this response from
respondent Judge, considering that the husband whom she accused of
concubinage and an attempt against her life would in the meanwhile continue
in the management of what she claimed to be her paraphernal property, an
assertion that was not specifically denied by him. What was held by this
Court in Araneta v. Concepcion, 3thus possesses relevance: "It is conceded
that the period of six months fixed therein Article 103 (Civil Code) is evidently
intended as a cooling off period to make possible a reconciliation between
the spouses. The recital of their grievances against each other in court may
only fan their already inflamed passions against one another, and the
lawmaker has imposed the period to give them opportunity for dispassionate
reflection. But this practical expedient, necessary to carry out legislative
policy, does not have the effect of overriding other provisions such as the
determination of the custody of the children and alimony and support
pendente lite according to the circumstance ... The law expressly enjoins that
these should be determined by the court according to the circumstances. If
these are ignored or the courts close their eyes to actual facts, rank injustice
may be caused." 4 At any rate, from the time of the issuance of the order
complained of on August 4, 1971, more than six months certainly had
elapsed. Thus there can be no more impediment for the lower court acting on
the motion of petitioner for the issuance of a writ of preliminary mandatory
injunction.

The court where the action is pending according to Article 103 is to remain
passive. It must let the parties alone in the meanwhile. It is precluded from
hearing the suit. There is then some plausibility for the view of the lower court
that an ancillary motion such as one for preliminary mandatory injunction is
not to be acted on. If it were otherwise, there would be a failure to abide by
the literal language of such codal provision. That the law, however, remains
cognizant of the need in certain cases for judicial power to assert itself is
discernible from what is set forth in the following article. It reads thus: "After
the filing of the petition for legal separation, the spouse shall be entitled to
live separately from each other and manage their respective property. The
husband shall continue to manage the conjugal partnership property but if
the court deems it proper, it may appoint another to manage said property, in
which case the administrator shall have the same rights and duties as a
guardian and shall not be allowed to dispose of the income or of the capital
except in accordance with the orders of the court." 2 There would appear to
be then a recognition that the question of management of their respective

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the
order of respondent Court of August 4, 1971, suspending the hearing on the
petition for a writ of preliminary mandatory injunction is set aside.
Respondent Judge is directed to proceed without delay to hear the motion for
preliminary mandatory injunction. Costs against respondent Clemente G.
Ramos.

46

G.R. No. L-33352 December 20, 1974

The petitioner filed his opposition to the respondent's application for

support pendente lite, setting up as defense the adultery charge he had filed
against the respondent.

TEODORO E. LERMA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCEPCION
DIAZ, respondents.

Judge Luciano granted the respondent's application for support pendente

lite in an order dated December 24, 1969, which she amended in an order
dated February 15, 1970 to the following effect: (1) the respondent was
declared entitled to support pendente lite from the date of the filing of the
complaint; and (2) the amount of such monthly support was reduced from
P2,250.00 to P1,820.00.

Salonga, Ordoez, Yap, Parlade & Associates for petitioner.

Villareal, Matic & Associates for private respondent.

On March 12, 1970 the petitioner filed with respondent Court of Appeals a
petition for certiorari and prohibition with preliminary injunction to annul the
aforementioned orders on the ground that they were issued with grave abuse
of discretion. The next day the respondent court gave due course to the
petition and issued a writ of preliminary injunction to stop Judge Luciano from
enforcing said orders.

MAKALINTAL, C.J.:p
Before Us for resolution are: (1) the petition for review by certiorari filed by
Teodoro E. Lerma on March 21, 1971 to set aside the resolution of the
respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition
for certiorari and prohibition with preliminary injunction filed therein; and (2)
the petitioner's motion for reconsideration of our resolution dated February 8,
1974 denying his urgent motion for the issuance of a writ of preliminary
injunction and/or restraining order to enjoin the enforcement of certain orders
of the Juvenile and Domestic Relations Court of Quezon City (hereinafter
referred to as the lower court) ordering the petitioner to pay supportpendente
lite to Concepcion Diaz, the private respondent herein.

The respondent court, in its decision of October 8, 1970, set aside the
assailed orders and granted the petitioner an opportunity to present evidence
before the lower court in support of his defense against the application for
support pendente lite.
The respondent moved to reconsider the decision on the ground that the
petitioner had not asked that he be allowed to present evidence in the lower
court. The respondent court, in its resolution of January 20, 1971, set aside
the decision of October 8 and rendered another, dismissing the petition. This
is now the subject of the instant proceeding for review.

Petitioner Lerma and respondent Diaz are husband and wife. They married
on May 19, 1951. On August 22, 1969 the petitioner filed a complaint for
adultery against the respondent and a certain Teodoro Ramirez (Crim. Case
No. 0519 of the Court of First Instance of Rizal). On November 18, 1969 the
respondent filed with the lower court, presided by Judge Leonor Ines
Luciano, a complaint 1 against the petitioner for legal separation and/or
separation of properties, custody of their children 2 and support, with an
urgent petition for support pendente lite for her and their youngest son,
Gregory, who was then and until now is in her custody. The respondent's
complaint for legal separation is based on two grounds: concubinage and
attempt against her life.

On January 23, 1974 the petitioner filed an urgent motion for a writ of
preliminary injunction and/or restraining order, alleging (1) that during the
pendency of this appeal and until December 5, 1973 the respondent had
never sought the enforcement of the assailed orders of the lower court
granting support pendente lite; (2) that on December 5, 1973 the respondent
filed with the lower court an urgent motion praying that the petitioner be
ordered to pay the awarded support pendente lite, both current and in
arrears, on the ground that in the absence of an injunction from this Court the
assailed orders should be executed; (3) that the petitioner filed his opposition

47

to the motion, pointing out that for the previous three years the respondent
did not ask for the enforcement of the orders and her belated move came
only "after petitioner had filed new adultery charges against her and her
second paramour" and after the petitioner had sought custody of their son
Gregory; (4) that in connection with the first adultery charge, the respondent
and her co-accused, Teddy Ramirez, had been convicted by the Court of
First Instance of Rizal in its decision rendered on September 26, 1972 and
said judgment of conviction was pending appeal in the Court of Appeals; (5)
that Judge Luciano issued an order dated January 19, 1974, ordering the
petitioner to pay the respondent the awarded support pendente lite within 15
days; and (6) that unless the lower court was enjoined from enforcing its
assailed orders, the present petition would be rendered moot and academic,
to the prejudice of the petitioner.

orders. On the same day the respondent filed her opposition to the motion for
reconsideration and later asked that it be set for oral argument. The
petitioner's pending motion was set for hearing on April 22, 1974 and then
reset for May 20, 1974. On the latter date counsel for both parties appeared.
In lieu, however, of oral argument the Court allowed them to file memoranda.
The petition assails the resolution of the respondent Court of Appeals on two
main grounds:
I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD
THAT THE LOWER COURT, IN GRANTING
SUPPORT PENDENTE LITE TO RESPONDENT
CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE
OF DISCRETION.

On January 28, 1974 this Court, acting on the petitioner's motion, resolved
"to issue a temporary restraining order effective immediately and until further
orders from this Court." The order was addressed to Judge Luciano, her
agents and representatives.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT

THE PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE
MAKE IT MANDATORY DURING THE PENDENCY OF
LEGAL SEPARATION PROCEEDINGS TO GRANT
SUPPORT PENDENTE LITE TO HEREIN RESPONDENT.

Required to comment on the petitioner's urgent motion for preliminary

injunction, the respondent filed an opposition, with a prayer for the immediate
lifting of the temporary restraining order issued ex-parte. The opposition
reiterated the grounds of her motion dated December 5, 1973 filed in the
lower court, to wit: (1) that an order granting support pendente lite, although
interlocutory, is immediately executory even if appealed, unless enjoined; (2)
that the dismissal of the petition by the respondent Court of Appeals
rendered functus oficio the writ of preliminary injunction it had previously
issued; and (3) that under Article 292 of the New Civil Code, which provides
that "during the proceedings for legal separation, or for annulment of
marriage, the spouses and children shall be supported from the conjugal
partnership property ...," such support is mandatory even if there be a
showing that the wife is guilty of adultery.

The foregoing alleged errors refer to the two aspects, procedural and
substantive, of the disputed orders granting support pendente lite.
As correctly stated by the respondent court in its decision (which was later
reconsidered in its resolution under review), the procedural law on
support pendente lite is Rule 61 of the Revised Rules of Court, specifically
Section 5 thereof, which partly provides:
The court shall determine provisionally the pertinent facts,
and shall render such order as equity and justice may
require, having due regard to the necessities of the
applicant, the means of the adverse party, the probable
outcome of the case, and such other circumstances as may
aid in the proper elucidation of the questions involved. ...

In a minute resolution dated February 8, 1974 We denied the petitioner's

urgent motion for a writ of preliminary injunction. On February 28, 1974 the
petitioner filed this instant motion for reconsideration. On March 6, 1974 We
issued another resolution setting aside the resolution of February 8, 1974
and reinstated the temporary restraining order previously issued until further

The petitioner maintains that the above-quoted provision was disregarded by

the lower court when it issued the disputed orders without provisionally

48

determining the pertinent facts of the case, particularly insofar as they might
have a bearing on its probable outcome, merely relying on the bare
allegations of the complaint. The petitioner also claims he was deprived of
the opportunity to present evidence in support of his defense of adultery
against the respondent's application for support pendente lite.

The respondent Court of Appeals, in upholding the questioned orders of the

lower court, relied on Article 292 of the Civil Code, which reads:
ART. 292. During the proceedings for legal separation, or for
annulment of marriage, the spouses and children shall be
supported from the conjugal partnership property. After the
final judgment of legal separation, or of annulment of
marriage, the obligation of mutual support between the
spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to
the innocent one, the judgment specifying the terms of such
order.

The question of whether or not the petitioner should be allowed to present

evidence in the lower court in support of that his wife had committed adultery
has become academic. The petitioner, in his motion filed February 28, 1974
for reconsideration of the denial by this Court of his petition for preliminary
injunction, manifested that on September 26, 1972 the court of First Instance
of Rizal decided the adultery case of the respondent and found her and her
co-accused, Teodoro Ramirez, guilty of the charge, sentencing them to a
term of imprisonment. This has not been denied by the respondent. Neither
is it denied that on March 30, 1970, as a result of the adulterous relations
with Teodoro Ramirez for which she was later on convicted, the said
respondent gave birth prematurely to a baby boy, who however died the
same day. When the respondent entered the hospital for delivery, she
registered under the assumed name of "Gloria Santos," and when the child
died had it falsely identified in the death certificate as the child of one Rosario
R. Salita, a close friend of hers. For the falsification thus committed Rosario
E. Salita was criminally charged and convicted, although the respondent
herself was acquitted on reasonable doubt. The petitioner's motion of
February 28 also states, without denial on the part of the respondent, that
after Teodoro Ramirez another man, this time a Manila policeman by the
name of Jose Gochangco, became her paramour, as a consequence of
which criminal charges of adultery have been filed against them before the
Fiscal of Manila. Photographs of the two, showing them in intimate pose,
were submitted to this Court. Their veracity has not been disputed.

It is suggested that while adultery may be a defense in an action for personal

support, that is, support of the wife by the husband from his own funds, it is
not a defense when the support is to be taken from the conjugal partnership
property.
We do not see that the distinction is material in this case. In the first place
Article 292 is not in itself the source of the legal right to receive support. It
merely states that the support, not only of the spouses but also of the
children, shall be taken from the conjugal property during the pendency of
the legal separation proceeding. It does not preclude the loss of such right in
certain cases. In the second place, the said article contemplates the
pendency of a court action and, inferentially at least, a prima facie showing
that the action will prosper. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. This is
also the sense of Section 5 of Rule 61, supra, which requires, among other
things, when support pendente lite is applied for, that the court determine
provisionally "the probable outcome of the case."

The legal issue posed by the foregoing facts is whether adultery is a good
defense against the respondent's claim for support pendente lite. In Quintana
v. Lerma, 24 Phil. 285, which was an action by the wife against the husband
for support, based upon a written contract, this Court held that adultery is a
good defense. This ruling was reiterated in the subsequent cases of Sanchez
v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See
also Olayvar v. Olayvar, 98 Phil. 52.

Article 100 of the Civil Code provides that "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 ... (and) where both
spouses are offenders, a legal separation cannot be claimed by either of
them ..."

49

In a provisional sense at least, within the meaning of Rule 61 (Section 5), the
probable failure of the respondent's suit for legal separation can be foreseen
since she is not an innocent spouse, having been convicted of adultery by
the Court of First Instance. It is true that the judgment of conviction is on
appeal in the Court of Appeals, but the same undoubtedly satisfies the
standard of provisional showing set by the aforesaid Rule. If legal separation
cannot be claimed by the guilty spouse in the first place, the fact that an
action for that purpose is filed anyway should not be permitted to be used as
a means to obtain support pendente lite, which, without such action, would
be denied on the strength of the decisions of this Court recognizing adultery
as a good defense. Otherwise, as pointed out by the petitioner, all that an
erring spouse has to do to circumvent such defense would be to file a suit for
legal separation no matter how groundless.

herein complained of, dated December 24, 1969 and February 15, 1970, all
are set aside and their enforcement enjoined, without prejudice to such
judgment as may be rendered in the pending action for legal separation
between the parties. No pronouncement as to costs.
Matubis v. Praxedes
Subject: Legal separation; condonation by the innocent spouse; statute of
limitations
Facts:
Plaintiff and defendant were legally married in 1943 at Iriga,
Camarines Sur. For failure to agree on how they should live as husband and
wife, the couple agreed to live separately from each other, which status
remained unchanged until the present. In 1948, plaintiff and defendant
entered into an agreement, stating the following: (a) that both of us relinquish
our right over the other as legal husband and wife; (b) That both without any
interference by any of us, nor either of us can prosecute the other for
adultery or concubinage or any other crime or suit arising from our
separation.

The right to separate support or maintenance, even from the conjugal

partnership property, presupposes the existence of a justifiable cause for the
spouse claiming such right to live separately. This is implicit in Article 104 of
the Civil Code, which states that after the filing of the petition for legal
separation the spouses shall be entitled to live separately from each other. A
petition in bad faith, such as that filed by one who is himself or herself guilty
of an act which constitutes a ground for legal separation at the instance of
the other spouse, cannot be considered as within the intendment of the law
granting separate support. In fact under Article 303 of the same Code the
obligation to give support shall cease "when the recipient, be he a forced heir
or not, has committed some act which gives rise to disinheritance;" and
under Article 921 one of the causes for disinheriting a spouse is "when the
spouse has given cause for legal separation." The loss of the substantive
right to support in such a situation is incompatible with any claim for
support pendente lite.

In January, 1955, defendant began cohabiting with one Asuncion

Rebulado who gave birth to a child, who was recorded as the child of said
defendant. It was shown also that defendant and Asuncion deported
themselves as husband and wife and were generally reputed as such in the
community. Alleging abandonment and concubinage, plaintiff Socorro
Matubis filed with the CFI of Camarines Sur a complaint for legal separation
and changed of surname against her husband defendant Zoilo Praxedes.
Held:

What has been said above, of course, is not meant to be a prejudgment of

either the legal separation proceeding pending in the lower court or the
criminal case for adultery pending in the Court of Appeals. It is to be
understood only in the light of Rule 61, Section 5, of the Rules of Court,
which specifically governs the subject of supportpendente lite.

Prescription
1. Article 102 of the new Civil Code provides that an action for legal
separation cannot be filed except within one year from and after

WHEREFORE, the resolution of respondent Court of Appeals of January 20,

1971 and the orders of respondent Juvenile and Domestic Relations Court

50

the date on which the plaintiff became cognizant of the cause and
within five years from after the date when cause occurred.

The appellants were sentenced by the Court of First Instance of Ilocos Norte
for the crime of adultery to three years, six months and twenty-one days
of prision correccional and appealed to this court, assigning the following
error: "The court below erred in not holding that the offended husband
contested to the adultery committed by his wife Ursula Sensano in that he
refused to live with her after she extinguished her previous sentence for the
same offense, and by telling her then that she could go where she wanted to
and do what she pleased, and by his silence for seven years notwithstanding
that he was informed of said adultery."

2. The complaint was filed outside the periods provided for by the
above Article. By the very admission of plaintiff, she came to know
the ground (concubinage) for the legal separation in January,
1955. She instituted the complaint only on April 24, 1956. It is to
be noted that appellant did not even press this matter in her brief.
Condonation

The facts briefly stated as follows:

3. Article 100 of the new Civil Code provides that 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.

Ursula Sensano and Mariano Ventura were married on April 29, 1919. They
had one child. Shortly after the birth of his child, the husband left his wife to
go to the Province of Cagayan where he remained for three years without
writing to his wife or sending her anything for the support of herself and their
son. Poor and illiterate, without relatives upon whom she could call, she
struggled for an existence for herself and her son until a fatal day when she
met the accused Marcelo Ramos who took her and the child to live with him.
On the return of the husband (in 1924), he filed a charge against his wife and
Marcelo Ramos for adultery and both were sentenced to four months and
one day of arresto mayor. The court, in its decision, stated the following: "In
the opinion of the court, the husband of the accused has been somewhat
cruel in his treatment of his wife having abandoned her as he did." After
completing her sentence, the accused left her paramour. She thereupon
appealed to this municipal president and the justice of the peace to send for
her husband so that she might ask his pardon and beg him to take her back.
At the house of the president she begged his pardon and promised to be a
faithful wife it he would take care her back. He refused to pardon her to live
with her and said she could go where she wished, that he would have
nothing more to do with her, and she could do as she pleased. Abandoned
for the second time, she and her child went back to her coaccused Marcelo
Ramos (this was in the year 1924) and they have lived with him ever since.
The husband, knowing that she resumed living with her codefendant in 1924,
did nothing to interfere with their relations or to assert his rights as husband.
Shortly thereafter he left for the Territory of Hawaii where she remained for
seven years completely abandoning his said wife and child. On his return to
these Islands, he presented the second charge of adultery here involved with

4. The agreement between the spouses is divided in two parts. The

first part having to do with the act of living separately which he
claims to be legal, and the second part that which becomes a
license to commit the ground for legal separation which is
admittedly illegal.
5. The condonation and consent here are not only implied but
expressed. Having condoned and/or consented in writing, the
plaintiff is now undeserving of the court's sympathy.

G.R. No. L-37720

March 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
URSULA SENSANO and MARCELO RAMOS, defendants-appellants.
Emilio L. Medina for appellants.
Attorney-General Jaranilla for appellee.
BUTTE, J.:

51

the sole purpose, as he declared, of being able to obtain a divorce under the
provisions of Act No. 2710.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.

Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:
Cardenas & Casal for appellants.
Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for
appellee.

Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape and acts of lasciviousness. The crimes of adultery
and concubinage shall not be prosecuted except upon a complaint
filed by the offended spouse.

MORAN, J.:

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.

On March 16, 1926, the accused Rodolfo A. Schneckenburger married the

compliant Elena Ramirez Cartagena and after seven years of martial life,
they agreed, for reason of alleged incompatibility of character, to live
separately each other and on May 25, 1935 they executed a document which
in part recites as follows:

Apart from the fact that the husband in this case was assuming a mere pose
when he signed the complaint as the "offended" spouse, we have come to
the conclusion that the evidence in this case and his conduct warrant the
inference that he consented to the adulterous relations existing between the
accused and therefore he is not authorized by law to institute this criminal
proceeding.

Que ambos comparecientes convienen en vivir separados el uno del

otro por el resto de su vida y se comprometen, y obligan
reciprocamente a no molastarse ni intervenir ni mezclarse bajo
ningun concepto en la vida publica o privada de los mismos, entre si,
quendado cada uno de los otorgantes en completa libertad de
accion en calquier acto y todos concepto.

We cannot accept the argument of the Attorney-General that the seven years
of acquiescence on his part in the adultery of his wife is explained by his
absence from the Philippine Islands during which period it was impossible for
him to take any action against the accused. There is no merit in the argument
that it was impossible for the husband to take any action against the accused
during the said seven years.

On June 15, 1935, the accused Schneckenburger, without leaving the

Philippines, secured a decree of divorce from the civil court of Juarez, Bravos
District, State of Chihuahua, Mexico. On May 11, 1936, he contracted
another marriage with his co-accused, Julia Medel, in the justice of the peace
court of Malabon, Rizal, and since then they lived together as husband and
wife in the city of Manila. Because of the nullity of the divorce decreed by the
Mexico Court, complaint herein instituted two actions against the accused,
one for bigamy in the Court of First Instance of Rizal and the other
concubinage in the court of First Instance of Manila. The first culminated in
the conviction of the accused for which he was sentenced to penalty of two
months and one day of arresto mayor. On the trial for the offense of
concubinage accused interposed the plea of double jeopardy, and the case
was dismissed; but, upon appeal by the fiscal, this Court held the dismissal
before the trial to be premature this was under the former procedure and
without deciding the question of double jeopardy, remanded the case to the

The judgment below is reversed with costs de oficio.

Street and Ostrand, JJ., concur.

G.R. No. L-48183

November 10, 1941

52

trial court for trial on the merits. Accused was convicted of concubinage
through reckless imprudence and sentenced to a penalty of two months and
one day of arresto mayor. Hence this appeal.

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
(Emphasis ours.)

As to appellant's plea of double jeopardy, it need only be observed that the

office of bigamy for which he was convicted and that of concubinage for
which he stood trial in the court below are two distinct offenses in law and in
fact as well as in the mode of their prosecution. The celebration of the
second marriage, with the first still existing, characterizes the crime of
bigamy; on the other hand, in the present case, mere cohabitation by the
husband with a woman who is not his wife characterizes the crime of
concubinage. The first in an offense against civil status which may be
prosecuted at the instance of the state; the second, an offense against
chastity and may be prosecuted only at the instance of the offended party.
And no rule is more settled in law than that, on the matter of double jeopardy,
the test is not whether the defendant has already been tried for the same act,
but whether he has been put in jeopardy for the same offense. (Diaz v. U. S.,
223 U. S., 422; People v. Cabrera, 43 Phil., 82)

As the term "pardon" unquestionably refers to the offense after its

commission, "consent" must have been intended agreeably with its ordinary
usage, to refer to the offense prior to its commission. No logical difference
can indeed be perceived between prior and subsequent consent, for in both
instances as the offended party has chosen to compromise with his/her
dishonor, he/she becomes unworthy to come to court and invoke its aid in the
vindication of the wrong. For instance, a husband who believers his wife
another man for adultery, is as unworthy, if not more, as where, upon
acquiring knowledge of the adultery after its commission, he says or does
nothing. We, therefore, hold that the prior consent is as effective as
subsequent consent to bar the offended party from prosecuting the offense.
In this arriving at this conclusion we do not with to be misconstrued as
legalizing an agreement to do an illicit act, in violation of law. Our view must
be taken only to mean that an agreement of the tenor entered into between
the parties herein, operates, within the plain language and manifest policy of
the law, to bar the offended party from prosecuting the offense. If there is
anything morally condemnatory in a situation of his character, the remedy lies
not with us but with the legislative department of the government. What the
law is, not what it should be, defines the limits of our authority.

Upon the other hand, we believe and so hold that the accused should be
acquitted of the crime of concubinage. The document executed by and
between the accused and the complaint in which they agreed to be "en
completa libertad de accion en cualquier acto y en todos conceptos," while
illegal for the purpose for which it was executed, constitutes nevertheless a
valid consent to the act of concubinage within the meaning of section 344 of
the Revised Penal Code. There can be no doubt that by such agreement,
each party clearly intended to forego to illicit acts of the other.

Judgment is reversed and the accused is hereby acquitted, without costs.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent which
bars the offended party from instituting a criminal prosecution in cases of
adultery, concubinage, seduction, abduction, rape and acts of lasciviousness
is that which has been given expressly or impliedly after the crime has been
committed. We are now convinced that this is a narrow view in way
warranted by the language, as well as the manifest policy, of the law. The
second paragraph of article 344 of the Revised Penal Code provides:

G.R. No. L-10699

October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,

vs.
JUANITA YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.
Assistant City Fiscal Rafel A. Jose for appellee.

53

REYES, J.B.L., J.:

separation cannot be claimed by either of them. Collusion between

the parties to obtain legal separation shall cause the dismissal of the
petition.

On July 14, 1955, William H. Brown filed suit in the Court of First Instance of
Manila to obtain legal separation from his lawful wife Juanita Yambao. He
alleged under oath that while interned by the Japanese invaders, from 1942
to 1945, at the University of Sto. Tomas internment camp, his wife engaged
in adulterous relations with one Carlos Field of whom she begot a baby girl
that Brown learned of his wifes misconduct only in 1945, upon his release
from internment; that thereafter the spouse lived separately and later
executed a document (Annex A ) liquidating their conjugal partnership and
assigning certain properties to the erring wife as her share. The complaint
prayed for confirmation of the liquidation agreement; for custody of the
children issued of the marriage; that the defendant be declared disqualified to
succeed the plaintiff; and for their remedy as might be just and equitable.

that there had been consent and connivance, and because Brown's action
had prescribed under Article 102 of the same Code:
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 date
when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in 1945 but
only filed action in 1945.

Upon petition of the plaintiff, the court subsequently declared the wife in
default, for failure to answer in due time, despite service of summons; and
directed the City Fiscal or his representatives to

Brown appeared to this Court, assigning the following errors:

The court erred in permitting the Assistant Fiscal Rafel Jose of
Manila to act as counsel for the defendant, who defaulted.

investigate, in accordance with Article 101 of the Civil Code, whether

or not a collusion exists between the parties and to report to this
Court the result of his investigation within fifteen (15) days from
receipt of copy of this order. The City Fiscal or his representative is
also directed to intervene in the case in behalf of the State. (Rec.
App. p. 9).

The court erred in declaring that there was condonation of or consent

to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to his
marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal
acted as consel for the defaulting wife, "when the power of the prosecuting
officer is limited to finding out whether or not there is collusion, and if there is
no collusion, which is the fact in the case at bar, to intervene for the state
which is not the fact in the instant case, the truth of the matter being that he
intervened for Juanita Yambao, the defendant-appellee, who is private citizen
and who is far from being the state.".

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and
cross-examined plaintiff Brown. His questions (strenuously objected to by
Brown's counsel) elicited the fact that after liberation, Brown had lived
maritally with another woman and had begotten children by her. Thereafter,
the court rendered judgment denying the legal separation asked, on the
ground that, while the wife's adultery was established, Brown had incurred in
a misconduct of similar nature that barred his right of action under Article 100
of the new Civil Code, providing:

The argument is untenable. Collusion in matrimonial cases being "the act of

married persons in procuring a divorceby mutual consent, whether by
preconcerted commission by one of a matrimonial offense, or by failure, in
pursuance of agreement to defend divorce proceedings" (Cyclopedia Law

ART. 100. The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation or of consent to the
adultery or concubinage. Where both spouses are offenders, a legal

54

Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate

for the Fiscal to bring to light any circumstances that could give rise to the
inference that the wife's default was calculated, or agreed upon, to enable
appellant to obtain the decree of legal separation that he sought without
regard to the legal merits of his case. One such circumstance is obviously
the fact of Brown's cohabitation with a woman other than his wife, since it
bars him from claiming legal separation by express provision of Article 100 of
the new Civil Code. Wherefore, such evidence of such misconduct, were
proper subject of inquiry as they may justifiably be considered circumstantial
evidence of collusion between the spouses.

Hence, there being at least two well established statutory grounds for
denying the remedy sought (commission of similar offense by petitioner and
prescription of the action), it becomes unnecesary to delve further into the
case and ascertain if Brown's inaction for ten years also evidences
condonation or connivance on his part. Even if it did not, his situation would
not be improved. It is thus needless to discuss the second assignment of
error.

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 cannot be
made depend upon the parties themselves (Civil Code, Article 52; Adong vs,
Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos,
35 Phil. 252). It is consonant with this policy that the injury 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.

The decision appealed from is affirmed, with costs against appellant. So

ordered.

The court below also found, and correctly held that the appellant's action was
already barred, because Brown did not petition for legal separation
proceedings until ten years after he learned of his wife's adultery, which was
upon his release from internment in 1945. Under Article 102 of the new Civil
Code, action for legal separation can not be filed except within one (1) year
from and after the plaintiff became cognizant of the cause and within five
years from and after the date when such cause occurred. Appellant's brief
does not even contest the correctness of such findings and conclusion.

Jose de Ocampo and Serafina Florenciano were married in 1938.

It is true that the wife has not interposed prescription as a defense.

Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest and it is the policy of our law that no such decree be issued if
any legal obstacles thereto appear upon the record.

plaintiff discovered that the wife was going out with several other

The third assignment of error being a mere consequence of the others must
necessarily fail with them.

De Ocampo vs. Florenciano

107 Phil 35

FACTS:

They begot several children who are not living with plaintiff. In
March 1951, latter discovered on several occasions that his wife
was betraying his trust by maintaining illicit relations with Jose
Arcalas. Having found out, he sent the wife to Manila in June 1951
to study beauty culture where she stayed for one year. Again

man other than Arcalas. In 1952, when the wife finished her
studies, she left plaintiff and since then they had lived separately.
In June 1955, plaintiff surprised his wife in the act of having illicit
relations with Nelson Orzame. He signified his intention of filing a

55

petition for legal separation to which defendant manifested

DECISION

conformity provided she is not charged with adultery in a criminal

CONCEPCION, J.:

action. Accordingly, Ocampo filed a petition for legal separation in

In an action for legal separation brought by Armando Medel against

Rosario Matute, upon the ground of adultery committed with his
brother and her brother-in-law, Ernesto Medel which action was
docketed as civil case No. 14190 of the Court of First Instance of
Manila decision was, on November 6, 1952, rendered by the
latter, finding Rosario guilty of the charge against her, decreeing
said legal separation, and awarding to Armando the custody of their
four (4) minor children, Florencia, Manuel, Carmelita and Benito, all
surnamed Medel, then 12, 10, 8 and 4 years of age, respectively.
Thereafter, Armando went to the United States, leaving the children
in the City of Davao under the care of his sister Pilar Medel, in
whose house Rosario subsequently lived in order to be with her
offspring. Armando returned to the Philippines late in 1954. At the
close of the then current school year, during which the children
were enrolled in a school in Davao, or in March, 1955, they joined
their father in Cebu. With his permission, Rosario brought the
children to Manila in April, 1955, to attend the funeral of her father.
Armando alleges that he consented thereto on condition that she
would return the children to him within two (2) weeks. However,
Rosario did not do so. Instead, on June 10, 1955, she filed, in said
civil case No. 14190, a motion the prayer of which is of the
following tenor:chanroblesvirtuallawlibrary

1955.

ISSUE: Whether the confession made by Florenciano constitutes

the confession of judgment disallowed by the Family Code.

HELD:

Florencianos admission to the investigating fiscal that she

committed adultery, in the existence of evidence of adultery other
than such confession, is not the confession of judgment disallowed
by Article 48 of the Family Code. What is prohibited is a confession
of judgment, a confession done in court or through a pleading.
Where there is evidence of the adultery independent of the

WHEREFORE, movant respectfully prays this Honorable Court,

after due hearing:chanroblesvirtuallawlibrary

defendants statement agreeing to the legal separation, the decree

of separation should be granted since it would not be based on the

(1) to issue an order awarding the custody of the above-named

children to the herein movant, their mother, in deference to the
preference expressed by the children (Sec. 6, Rule 100, Rules of
Court); chan roblesvirtualawlibraryand

confession but upon the evidence presented by the plaintiff. What

the law prohibits is a judgment based exclusively on defendants
confession. The petition should be granted based on the second

(2) to order Armando Medel, father of the said minor children, to

support said children by paying their school fees and giving them a
reasonable allowance both items in an amount not less than P200 a
month.

adultery, which has not yet prescribed.

Said motion was based upon the ground that the children three
(3) of whom, namely, Florencia, Manuel and Carmelita, were then
16, 14 and 12 years of age, respectively do not want to go back
to their father, because he is living with a woman other than their
mother. Armando opposed this motion and countered with a

[G.R. No. L-9325. May 30, 1956.]

ROSARIO MATUTE, Petitioner, vs. HON. HIGINIO B.
MACADAEG, as Judge of the Court of First Instance of
Manila, Branch X, and ARMANDO MEDEL, Respondents.

56

petition to declare and punish Rosario for contempt of court, in

view of her failure and alleged refusal to restore the custody of
their children to him. After due hearing the Court of First Instance of
Manila, presided over by Hon. Higinio B. Macadaeg, Judge, issued
an order, dated June 29, 1955, absolving Rosario from the charge of
contempt of court, she having secured Armandos consent before
bringing the children to Manila, but denying her motion for their
custody and ordering her to deliver them to Armando within
twenty-four (24) hours from notice. The dispositive part of said
order reads:chanroblesvirtuallawlibrary

father Armando Medel; chan roblesvirtualawlibrary(2) three (3) of

the children are over ten (10) years of age, and, hence, their
aforementioned wish must, pursuant to Rule 100, section 6, of the
Rules of Court, be heeded, unless the parent so chosen be unfit to
take charge of them by reason of moral depravity, habitual
drunkenness, incapacity or poverty; chan roblesvirtualawlibrary(3)
the act of infidelity of which she had been found guilty in the
decision of November 6, 1952, does not involve moral
depravity; chan roblesvirtualawlibrary(4) in any event, it is a thing
of
the
past,
not
a
present
reality; chan
roblesvirtualawlibrary(5) Respondent Armando Medel is now unfit
to have the children under his care, for he is living maritally with a
woman by the name of Paz Jesusa Concepcion; chan
roblesvirtualawlibraryand (6) although he had married the latter,
after securing in the United States a decree of divorce dissolving
his marriage with Petitioner herein, said decree is null and void and,
accordingly, he is guilty of bigamy.

IN VIEW OF THE FOREGOING, motion for the custody of the minor

children, Florencia, Manuel, Carmelita, and Benito, all surnamed
Medel, is hereby denied. Rosario Matute is hereby ordered to
deliver to Armando Medel the persons of the said minor children,
within twenty-four (24) hours from receipt of copy of this Order.
Let copies of this Order be served immediately by the Sheriff of
this Court, not only on the lawyers appearing in this case, but also
on the parties themselves.

In the present action, we do not deem it necessary to pass upon

the merits of such pretense. The case before us is one of certiorari
and prohibition, governed by sections 1 and 2 of Rule 67 of the
Rules of Court, reading:chanroblesvirtuallawlibrary

Thereupon, Rosario instituted, against Armando and Judge

Macadaeg, the present action for certiorari and prohibition with
preliminary injunction, upon the ground that said order of June 29,
1955, had been issued with grave abuse of discretion, and that
there is no other plain, adequate and speedy remedy in the
ordinary course of law. The prayer in her petition, is as
follows:chanroblesvirtuallawlibrary

SECTION 1. Petition for certiorari. When any tribunal, board, or

officer exercising judicial functions, has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion and there
is no appeal, nor any plain, speedy, end adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board, or officer as the law requires,
with costs.

WHEREFORE, Petitioner respectfully prays this Honorable Court to

issue a writ of preliminary injunction upon Petitioners filing a bond
in such sum as this Honorable Court may fix, orderingRespondents,
their attorneys, agents and other persons acting by and under their
orders to cease and desist from enforcing in any way the order of
the Respondent Court dated June 19, 1965, and after hearing, to
annul the said Order and to award the custody of the children to
your Petitioner.

SEC. 2. Petition for prohibition. When the proceedings of any

tribunal corporation board, or person, whether exercising functions
judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no
appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty
and
praying
that
judgment
be
rendered
commanding
the Defendant to desist from further proceedings in the action or
matter specified therein, with costs.

Petitioner likewise prays for such other or further relief as may be

just and equitable, without costs.
Upon the filing of the petition, we issued the writ of preliminary
injunction therein prayed for, without bond.
Briefly stated, Petitioner herein maintains that the children should
be under her custody, because:chanroblesvirtuallawlibrary (1) she
is their legitimate mother and they wish to stay with her, not their

Pursuant to these provisions, neither the writ of certiorari nor that

of prohibition lies unless the act complained of has been performed

57

without or in excess of jurisdiction or with grave abuse of

discretion. There is no question but that Respondent Judge had
jurisdiction to pass upon the issue raised by Petitioners motion of
June 10, 1955, for custody of the children, and the petition
of Respondent Medel,
dated
June
22,
1955,
to
declare Petitioner guilty
of
contempt
of
court,
to
wit:chanroblesvirtuallawlibrary whether said custody should be
retained by Respondent Medel, as adjudged in the decision of
November 6, 1952, or should be given to Petitioner herein. Which
ever alternative taken by Respondent Judge would not vitiate his
choice as being without or in excess of jurisdiction. Whatever
mistakes, if any, he may have committed in the appraisal of the
situation on which we do not express our view in determining
the best solution to said issue or which one of the litigants is best
qualified or least disqualified to take charge of the children, would,
at best, constitute merely errors of judgment. They are not
errors of jurisdiction, but errors in the exercise of the jurisdiction
which the lower court admittedly had. Such errors do not affect the
legality or validity of the order complained of. They may be
reviewed by appeal, not by writ of certiorari or prohibition.
(Comments on the Rules of Court, by Moran, Vol. II, pp. 167 and
168).

question his authority to make it, although she is free to seek a

review of the order or decision awarding the custody of the minors
to him, and to ask that they be placed under her charge.
Again, it is conceded that children over ten (10) years of age,
whose parents are divorced or living separately, may choose which
parent they prefer to live with, unless the parent chosen is unfit to
take charge of their care by reason of moral depravity, habitual
drunkenness, incapacity or poverty (Rule 100, section 6, Rules of
Court). Without deciding whether the adultery committed by
herein Petitioner with her own brother-in-law involves moral
depravity, it is clear to our mind that the affirmative assumption
implicit in the order complained of cannot be characterized as an
abuse of discretion, much less a grave one.
Lastly, said order further declares:chanroblesvirtuallawlibrary
cralaw The facts remains that Defendant-movant is without
means of livelihood and, according to her own admission, she lives
on the charity of her brothers. She has no home of her own to offer
to her children, but only she would shelter them under the roof of
her brothers.
and the substantial accuracy of this statement is not contested. We
are not prepared to hold, that a grave abuse of discretion was
committed when the lower court impliedly deduced, from these
circumstances,
that
poverty,
among
other
causes,
rendered Petitioner unfit to take charge of her children or made it
unwise to place them under her care.

Neither does the aforementioned order of June 29, 1955, involve a

grave abuse of discretion for it merely enforces the award made in
the decision of November 6, 1952, which is admittedly final and
executory. It is true that, insofar as it refers to the custody of the
minor children, said decision is never final, in the sense that it is
subject to review at any time that the Court may deem it for the
best interest of said minors. It is no less true, however, that, unless
and until reviewed and modified, said award must stand. No such
modification having been made, at yet,Respondent Judge had, not
only the authority; chan roblesvirtualawlibrarybut, also, the duty to
execute and implement said award.

Wherefore, without prejudice to such appropriate action

as Petitioner may deem fit to take for the purpose of securing a
review of the order of Respondent Judge of June 29, 1955, or a
modification of the award made in the decision of November 6,
1952, relative to the custody of the children, or both, the petition is
denied and the case dismissed. The writ of preliminary injunction
heretofore issued is hereby dissolved, with costs against
the Petitioner. It is SO ORDERED.

Furthermore, by virtue of said decision of November 6,

1952, Respondent had,
admittedly,
the
custody
of
said
minors. Petitioner merely obtained his permission to bring them to
Manila, for the purpose of attending the funeral of their maternal
grandfather,
which
took
place
in
April,
1955.
Thus, Petitioner obtained and has the physical possession of the
minors in a precarious manner. She holds it in the name, on behalf
and by authority of Respondent Medel, whose agent she, in effect,
is. He may, therefore, demand their return at any time, and she is
bound to comply immediately with such demand. She cannot even

Laperal vs. Republic

GR No. 18008, October 30, 1962

FACTS:

58

The petitioner, a bona fide resident of Baguio City, was married

In legal separation, the married status is unaffected by the

with Mr. Enrique R. Santamaria on March 1939. However, a decree

separation, there being no severance of the vinculum. The finding

of legal separation was later on issued to the spouses. Aside from

that petitioners continued use of her husband surname may cause

that, she ceased to live with Enrique. During their marriage, she

undue confusion in her finances was without basis. It must be

naturally uses Elisea L. Santamaria. She filed this petition to be

considered that the issuance of the decree of legal separation in

permitted to resume in using her maiden name Elisea Laperal. This

1958, necessitate that the conjugal partnership between her and

was opposed by the City Attorney of Baguio on the ground that it

Enrique had automatically been dissolved and liquidated. Hence,

violates Art. 372 of the Civil Code. She was claiming that

there could be no more occasion for an eventual liquidation of the

continuing to use her married name would give rise to confusion in

conjugal assets.

her finances and the eventual liquidation of the conjugal assets.

Furthermore, applying Rule 103 is not a sufficient ground to justify
ISSUE: Whether Rule 103 which refers to change of name in

a change of the name of Elisea for to hold otherwise would be to

general will prevail over the specific provision of Art. 372 of the

provide for an easy circumvention of the mandatory provision of

Civil Code with regard to married woman legally separated from his

Art. 372.

husband.
Petition was dismissed.
HELD:

59