Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region

Branch 6, City of Manila

LISA BAUTISTA

PETITIONER CIVIL CASE NO: 21111

VERSUS FOR: NULLITY OF

MARRIAGE PURSUANT TO
ARTICLE 6 OF THE FAMILY
CODE

ANDREW BAUTISTA

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DECISION

Petitioner Lisa Bautista filed the instant complaint for the declaration of nullity of
her marriage with respondent Andrew Bautista on the ground that the respondent was
psychologically incapacitated and that there was concealment of respondent's
homosexuality by the time of the celebration of their marriage. Respondent Andrew
Bautista resisted the action claiming that he is aware of his marital obligations and that
petitioner had no sufficient proof to prove her allegations against him.

STATEMENT OF FACTS

Lisa Bautista and Andrew Bautista celebrated their marriage on January 24, 2003.
On August 16, 2017, Lisa Bautista filed a petition for the nullity of their marriage which
states that Andrew Bautista failed to comply with his marital obligation with his wife that
the said respondent herein refused to have sexual intercourse with the petitioner for six
(6) years even she did a lot of ways to make her husband attracted to her, and the latter
still refuses. Petitioner presented the two witnesses to testify at court to prove the
infidelity of the husband which states that they saw the husband holding hands with
another woman and on a separate day, they again saw the husband checking out of a hotel
with a man. On his reply, the respondent said that he isn't psychologically incapacity
because he provides everything that a family needs and he fullfill his duties as a father to
their two children.

ISSUES

First, Whether or not Respondent is psychologically incapacitated.

Second, Whether or not Respondent's alleged homosexuality can be a ground for

the nullity of their marriage.

Third, Whether or not the testimony of the witnesses can be used against
Respondent's alleged infidelity.

Fourth, Whether or not the Petitioner shall be given the custody of their children.

ARGUMENTS

1. The Respondent was found to be psychologically incapacitated.

2. The testimony of the witnesses can be used against Respondent.

3. Respondent's concealment of homosexuality is a ground for the nullity of marriage

pursuant to Article 45 and 46 of the Family Code.

4. Custody of the children shall be given to the innocent parent.

DISCUSSION
 1. From the testimony of the Petitioner, the Respondent failed to perform the marital
obligations of marriage.

Under Article 68 of the Family Code, it states that:

"The husband and wife are obliged to live together, observe mutual love and
respect and fidelity and render mutual help and support."

It was clearly stated that the respondent failed to perform his marital obligations
to the petitioner. The refusal to have sexual intercourse and infidelity for a long period of
time is a ground for the nullity of their marriage. Under the law, among these marital
obligations is the duty to live together and observe mutual love. For spouses, this duty
finds fulfillment in sexual intimacy. Consequently, a spouse's persistent refusal or utter
lack of interest to have marital sexual relations to fulfill this marital obligation devastates
the marriage and is equivalent to psychological incapacity.

This will fall under Article 36 of the Family Code which states that:

"A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the marital obligations of marriage, shall
be void even if such incapacity becomes manifest only after its solemnation."

In defense, the Respondent stated that he is not psychologically incapaacitated as

they have already two children and that would prove that he is aware of the marital
obligations. Thus, it is said that marriage is definitely not for children but two consenting
adults who view the relationship with love amor gignit amorem, respect, sacrifice and a
continuing commitment to compromise, conscious of its value as a sublime social
institution. Having kids doesn't stop and should not stop the husband in doing his marital
obligations to his wife which is to practice mutual love, respect, fidelity as well as give
his wife mutual help and support and sexual intimacy. We view psychological incapacity,
to be a ground for the nullity of marriage, as a broad range of mental and behavioral
conduct on the part of one spouse inidicative of how he or she regards the marital union ,
his or her personal relationship with the other spouse, as well as his or her conduct in the
long haul for the attainment of the principal objectives of marriage. If said conduct,
observed and considered as a whole, tends to cause the union to self-destruct because it
defeats the very objectives of marriage, then there is enough reason to leave the spouse to
their individual fates.

2. The Respondent claimed that the friends of the Petitioner cannot testify at the court as
their testimony are just hearsays. In support of his claim, he presented the Rule 130
Section 36 of the Rules of Court.

"Testimony generally confined to personal knowledge; hearsay excluded. - A

witness can testify only to those facts which he knows of his personal knowledge; that is ,
which are derived from his own perception , except as otherwise provided in these rules."

The petitioner then appealed that it would only constitute as a hearsay if the
petitioner didn't presented her friends to act as witnesses at court, and made allegations
against respondent. Since the petitioner's friends acted as witnesses and testified at the
court from their personal knowledge based on what they saw, it would only prove that the
testimony of the witnesses presented by the petitioner against the respondent's infidelity
doesn't constitute as a hearsay evidence and is admissible in court.

The petitioner also stated the Rule 130, Section 50 of the Rules of Court to prove
that the testimony and opinion of the witnesses can be used against the respondent's
infidelity:

"Opinion of ordinary witnesses - The opinion of a witness for which proper basis
is given, may be received in evidence regarding -

(a) the identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted .

The witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person."

The testimony of the witnesses is admmisible in court providing that he or she possess
the qualifications and none of the disqualifications of being a witness. Rule 130, Section
20 from the Rules of Court states that :

"Witnesses; their qualifications. - Except as provided in the next succeeding

section, all persons who can perceive, and perceiving, can make their known perception
to others, may be witnesses.

Religous or Political belief, interest in the outcome of the case, or conviction of a

crime unless otherwise provided by law , shall not be a ground for disqualification."

3. Respondent's concealment of homosexuality to his wife can be a ground for

nullity of marriage. Petitioner had no knowledge of the fact of her husband's
homosexuality which would constitute that the petitioner's consent was obtained by
fraud. She only found out about the homosexuality of her husband when a friend told her
that they saw her husband checking out of a hotel with a man. She then concluded that it
would prove her suspicions her husband is indeed homosexual and attracted to the same
sex, that's why he refuses to have sex for 6 years and that the effort she made is to no
avail.
 Under Article 45 and 46 of the Family Code:

"Art. 45. A marriage may be annulled for any of the following causes, existing at
the time of the marriage: (3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the fatcs constituting the fraud,
freely cohabited with the other as husband and wife."

"Art. 46. Any of the following circumstances shall constitute fraud referred to in
Art. 45(3): (4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of marriage."

4. We took into account that in all controversies regarding the custody of minors ,
the sole and foremost consideration is the physical, education, social and moral welfare
of the child concerned , taking into account the respective resources and social and moral
situations of the contending parents.

As their children are both older than seven years of age, the children are allowed
to state their preference but this court is not bound by that choice. We may disregard the
child's preference should the parent chosen be found to be unfit, in which instance,
custody may be given to the other parent, or even to a third person.

It appears from the evidence presented, the Respondent failed to perform the
essential marital obligations that are embraced by Articles 68 up to 71 of the Family Code
as regards to husband and wife as well as Articles 220, 221, and 225 of the same Code in
regards to parents and their children by hiding the fact that he had been unfaithful to his
wife by having an affair to another man. Illicit or immoral activities of the father may
cause their children emotional disturbances, personality conflicts, and may expose them
to conflicting moral values. With this, the petitioner as the innocent parent, we may give
the custody of the children to the mother.

If the parent who was given custody suffers a future character change and
becomes unfit, the matter of the custody can always be re-examined and adjusted. In
other words, custody is not permanent.

On the other hand, This court cannot deprive the visitation right of the
Respondent as the Non-Custodial Parent. It is an inherent and natural right of parents
over children protected no less than by the Constitution itself.

In view of the above findings, the Petitioner successfully proved that the
Respondent was suffering from psychological incapacity which prevents him from doing
the essential obligations of marriage and that the consent of the petitioner was obtained
by fraud by concealment of homosexuality. Perforce, the marriage must be dissolved.

WHEREFORE, the foregoing premises considered, the marriage entered into by

LISA BAUTISTA and ANDREW BAUTISTA on January 24, 2003 at City of Manila is
declared NULL AND VOID from its inception and the legal custody shall be given to the
petitioner with visitorial right to the respondent.

After this Decision shall have become final and executory, let a copy be furnised
the Local Civil Registrar of City of Manila who is directed to cancel the marriage
between petitioner and respondent in their Book of Marriages at the Philippine Statistics
Authority, Quezon City after payment of proper legal fees.

Let a Decree of Annulment be issued.

SO ORDERED.

City of Manila, this 30th day of August 2017.

MARY JOY P. LACABA

Presiding Judge

CC:

Atty. Amalia V. Tomas

Atty. Desiree Pasong

Atty. Rommel Argones