Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 11263

November 2,
1916

ELOISA GOITIA DE LA CAMARA, plaintiffappellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias
for appellant.
Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:
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.
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.
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.
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 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.
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.
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.
xxx

xxx

xxx

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:.
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.
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 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.
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.

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 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
the Audencia Territorialwherein, 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 the Audencia Territorial, said:
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
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.
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 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.
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:
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 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
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.
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.

The foregoing are the grounds upon

which our short opinion and order for
judgment, heretofore filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.

MARIANO B. ARROYO, plaintiff-appellant,

vs.
DOLORES C. VASQUEZ DE
ARROYO, defendant-appellee.
Fisher & DeWitt for appellant.
Powell & Hill for appellee.
STREET, J.:

Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the
ground that a husband cannot, by his own
wrongful acts, relieve himself from the duty
to support his wife imposed by law; and
where a husband, by wrongful, illegal, and
unbearable conduct, drives his wife from the
domicile fixed by him, he cannot take
advantage of her departure to abrogate the
law applicable to the marital relation and
repudiate his duties thereunder. In law and
for all purposes within its purview, the wife
still remains an inmate of the conjugal
domicile; for I regard it as a principle of law
universally recognized that where a person
by his wrongful and illegal acts creates a
condition which under ordinary
circumstances would produce the loss of
rights or status pertaining to another, the law
will, whenever necessary to protect fully the
rights or status of the person affected by
such acts, regard the condition by such acts
created as not existing and will recur to and
act upon the original situation of the parties
to determine their relative rights or the
status of the person adversely affected.
I do not believe, therefore, that the
case is properly conceived by defendant,
when the consideration thereof proceeds
solely on the theory that the wife is outside
the domicile fixed by the husband. Under the
facts alleged in the complainant the wife is
legally still within the conjugal domicile.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17014
1921

August 11,

Mariano B. Arroyo and Dolores C. Vasquez de

Arroyo were united in the bonds of wedlock
by marriage in the year 1910, and since that
date, with a few short intervals of separation,
they have lived together as man and wife in
the city of Iloilo until July 4, 1920, when the
wife went away from their common home
with the intention of living thenceforth
separate from her husband. After efforts had
been made by the husband without avail to
induce her to resume marital relations, this
action was initiated by him to compel her to
return to the matrimonial home and live with
him as a dutiful wife. The defendant
answered, admitting the fact of marriage,
and that she had left her husband's home
without his consent; but she averred by way
of defense and cross-complaint that she had
been compelled to leave by cruel treatment
on the part of her husband. Accordingly she
in turn prayed for affirmative relief, to consist
of (1) a decree of separation; (2) a liquidation
of the conjugal partnership; (3) and an
allowance for counsel fees and permanent
separate maintenance. Upon hearing the
cause the lower court gave judgment in favor
of the defendant, authorizing her to live
apart from her husband, granting her
alimony at the rate of P400 per month, and
directing that the plaintiff should pay to the
defendant's attorney the sum of P1,000 for
his services to defendant in the trial of the
case. The plaintiff thereupon removed the
case with the usual formalities by appeal to
this court.
The trial judge, upon consideration of the
evidence before him, reached the conclusion
that the husband was more to blame than his
wife and that his continued ill-treatment of
her furnished sufficient justification for her
abandonment of the conjugal home and the
permanent breaking off of marital relations
with him. We have carefully examined and
weighed every line of the proof, and are of
the opinion that the conclusion stated is
wholly untenable. The evidence shows that
the wife is afflicted with a disposition of
jealousy towards her husband in an

aggravated degree; and to his cause are

chiefly traceable without a doubt the many
miseries that have attended their married
life. In view of the decision which we are to
pronounce nothing will be said in this opinion
which will make the resumption of married
relations more difficult to them or serve as a
reminder to either of the mistakes of the
past; and we prefer to record the fact that so
far as the proof in this record shows neither
of the spouses has at any time been guilty of
conjugal infidelity, or has given just cause to
the other to suspect illicit relations with any
person. The tales of cruelty on the part of the
husband towards the wife, which are the
basis of the cross-action, are in our opinion
no more than highly colored versions of
personal wrangles in which the spouses have
allowed themselves from time to time to
become involved and would have little
significance apart from the morbid condition
exhibited by the wife. The judgment must
therefore be recorded that the abandonment
by her of the marital home was without
sufficient justification in fact.
In examining the legal questions involved, it
will be found convenient to dispose first of
the defendant's cross-complaint. To begin
with, the obligation which the law imposes
on the husband to maintain the wife is a duty
universally recognized in civil society and is
clearly expressed in articles 142 and 143 of
the Civil code. The enforcement of this
obligation by the wife against the husband is
not conditioned upon the procurance of a
divorce by her, nor even upon the existence
of a cause for divorce. Accordingly it had
been determined that where the wife is
forced to leave the matrimonial abode and to
live apart from her husband, she can, in this
jurisdiction, compel him to make provision
for her separate maintenance
(Goitia vs. Campos Rueda, 35 Phil., 252); and
he may be required to pay the expenses,
including attorney's fees, necessarily
incurred in enforcing such obligation,
(Mercado vs. Ostrand and Ruiz, 37 Phil.,
179.) Nevertheless, the interests of both
parties as well as of society at large require
that the courts should move with caution in
enforcing the duty to provide for the
separate maintenance of the wife, for this
step involves a recognition of the de
facto separation of the spouses a state
which is abnormal and fraught with grave
danger to all concerned. From this
consideration it follows that provision should

not be made for separate maintenance in

favor of the wife unless it appears that the
continued cohabitation of the pair has
become impossible and separation necessary
from the fault of the husband.
In Davidson vs Davidson, the Supreme Court
of Michigan, speaking through the eminent
jurist, Judge Thomas M. Cooley, held that an
action for the support of the wife separate
from the husband will only be sustained
when the reasons for it are imperative (47
Mich., 151). That imperative necessity is the
only ground on which such a proceeding can
be maintained also appears from the
decision in Schindel vs. Schindel (12 Md.,
294). In the State of South Carolina, where
judicial divorces have never been procurable
on any ground, the Supreme court fully
recognizes the right of the wife to have
provision for separate maintenance, where it
is impossible for her to continue safely to
cohabit with her husband; but the same
court has more than once rejected the
petition of the wife for separate maintenance
where it appeared that the husband's alleged
cruelty or ill-treatment was provoked by the
wife's own improper conduct.
(Rhame vs. Rhame, 1 McCord's Chan. [S.
Car.], 197; 16 Am. Dec., 597; Boydvs. Boyd,
Har. Eq. [S. Car.], 144.)
Upon one occasion Sir William Scott,
pronouncing the judgment of the English
Ecclesiastical Court in a case where cruelty
on the part of the husband was relied upon
to secure a divorce for the wife, made use of
the following eloquent words, which are
perhaps even more applicable in a
proceeding for separate maintenance in a
jurisdiction where, as here, a divorce cannot
be obtained except on the single ground of
adultery and this, too, after the conviction of
the guilty spouse in a criminal prosecution
for that crime. Said he:
That the duty of cohabitation is
released by the cruelty of one of the
parties is admitted, but the question
occurs, What is cruelty? . . .
What merely wounds the mental
feelings is in few cases to be admitted
where they are not accompanied with
bodily injury, either actual or
menaced. Mere austerity of temper,
petulance of manners, rudeness of
language, a want of civil attention and
accommodation, even occasional

sallies of passion, if they do not

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

to soften by mutual accommodation

that yoke which they know cannot
shake off; they become good
husbands and good wives form the
necessity of remaining husbands and
wives; for necessity is a powerful
master in teaching the duties which it
imposes. . . . In this case, as in many
others, the happiness of some
individuals must be sacrificed to the
greater and more general good.
(Evans vs. Evans, 1 Hag. Con., 35; 161
Eng. Reprint, 466, 467.)
In the light of the considerations stated, it is
obvious that the cross-complaint is not well
founded and none of the relief sought therein
can be granted.
The same considerations that require the
dismissal of the cross-complaint conclusively
prove that the plaintiff, Mariano B. Arroyo,
has done nothing to forfeit his right to the
marital society of his wife and that she is
under an obligation, both moral and legal, to
return to the common home and cohabit with
him. The only question which here arises is
as to the character and extent of the relief
which may be properly conceded to him by
judicial decree.
The action is one by which the plaintiff seeks
the restitution of conjugal rights; and it is
supposed in the petitory part of the
complaint that he is entitled to a permanent
mandatory injunction requiring the
defendant to return to the conjugal home
and live with him as a wife according to the
precepts of law and morality. Of course if
such a decree were entered, in unqualified
terms, the defendant would be liable to
attachment for contempt, in case she should
refuse to obey it; and, so far as the present
writer is aware, the question is raised for the
first time in this jurisdiction whether it is
competent for the court to make such an
order.
Upon examination of the authorities we are
convinced that it is not within the province of
the courts of this country to attempt to
compel one of the spouses to cohabit with,
and render conjugal rights to, the other. Of
course where the property rights of one of
the pair are invaled, an action for restitution
of such rights can be maintained. But we are
disinclined to sanction the doctrine that an
order, enforcible by process of contempt,
may be entered to compel the restitution of

the purely personal rights of consortium. At

best such an order can be effective for no
other purpose than to compel the spouses to
live under the same roof; and the experience
of these countries where the court of justice
have assumed to compel the cohabitation of
married people shows that the policy of the
practice is extremely questionable. Thus in
England, formerly the Ecclesiastical Court
entertained suits for the restitution of
conjugal rights at the instance of either
husband or wife; and if the facts were found
to warrant it that court would make a
mandatory decree, enforcible by process of
contempt in case of disobedience, requiring
the delinquent party to live with the other
and render conjugal rights. Yet this practice
was sometimes criticized even by the judges
who felt bound to enforce such orders, and in
Weldon vs. Weldon (9 P. D., 52), decided in
1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of
the High Court of Justice, expressed his
regret that the English law on the subject
was not the same as that which prevailed in
Scotland, where a decree of adherence,
equivalent to the decree for the restitution of
conjugal rights in England, could be obtained
by the injured spouse, but could not be
enforced by imprisonment. Accordingly, in
obedience to the growing sentiment against
the practice, the Matrimonial Causes Act
(1884) abolished the remedy of
imprisonment; though a decree for the
restitution of conjugal rights can still be
procured, and in case of disobedience may
serve in appropriate cases as the basis of an
order for the periodical payment of a stipend
in the character of alimony.
In the voluminous jurisprudence of the
United States, only one court, so far as we
can discover, has ever attempted to make a
peremptory order requiring one of the
spouses to live with the other; and that was
in a case where a wife was ordered to follow
and live with her husband, who had changed
his domicile to the City of New Orleans. The
decision referred to (Gahn vs. Darby, 36 La.
Ann., 70) was based on a provision of the
Civil Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided many
years ago, and the doctrine evidently has not
been fruitful even in the State of Louisiana.
In other states of the American Union the
idea of enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148.)

In a decision of January 2, 1909, the supreme

court of Spain appears to have affirmed an
order of the Audencia Territorial de
Valladolid requiring a wife to return to the
marital domicile, and in the alternative, upon
her failure to do so, to make a particular
disposition of certain money and effects then
in her possession and to deliver to her
husband, as administrator of the ganancial
property, all income, rents, and interest
which might accrue to her from the property
which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11.) but it does not
appear that this order for the return of the
wife to the marital domicile was sanctioned
by any other penalty than the consequences
that would be visited upon her in respect to
the use and control of her property; and it
does not appear that her disobedience to
that order would necessarily have been
followed by imprisonment for contempt.
We are therefore unable to hold that Mariano
B. Arroyo in this case is entitled to the
unconditional and absolute order for the
return of the wife to the marital domicile,
which is sought in the petitory part of the
complaint; though he is, without doubt,
entitled to a judicial declaration that his wife
has presented herself without sufficient
cause and that it is her duty to return.
Therefore, reversing the judgment appealed
from, in respect both to the original
complaint and the cross-bill, it is declared
that Dolores Vasquez de Arroyo has absented
herself from the marital home without
sufficient cause; and she is admonished that
it is her duty to return. The plaintiff is
absolved from the cross-complaint, without
special pronouncement as to costs of either
instance. So ordered.
Mapa, C.J., Johnson, Araullo, Avancea and
Villamor, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18008
1962

October 30,

ELISEA LAPERAL, petitioner,

vs.
REPUBLIC OF THE
PHILIPPINES, oppositor.

Martin B. Laurea and Associates for

petitioner.
Office of the Solicitor General for oppositor.
BARRERA, J.:
On May 10, 1960, Elisea Laperal filed in the
Court of First Instance of Baguio (Sp Proc. No.
433) a petition which reads:
1. That petitioner has been a bona
fide resident of the City of Baguio for
the last three years prior to the date of
the filing of this petition;
2. That petitioner's maiden name is
ELISEA LAPERAL; that on March 24,
1939, she married Mr. Enrique R.
Santamaria; that in a partial decision
entered on this Honorable Court on
January 18, 1958, in Civil Case No. 356
of this Court, entitled 'Enrique R.
Santamaria vs. Elisea L. Santamaria'
Mr. Enrique Santamaria was given a
decree of legal separation from her;
that the said partial decision is now
final;
3. That during her marriage to Enrique
R. Santamaria, she naturally used,
instead of her maiden name, that of
Elisea L. Santamaria; that aside from
her legal separation from Enrique R.
Santamaria, she has also ceased to
live with him for many years now;
4. That in view of the fact that she has
been legally separated from Mr.
Enrique R. Santamaria and has
likewise ceased to live with him for
many years, it is desirable that she be
allowed to change her name and/or be
permitted to resume using her maiden
name, to wit: ELISEA LAPERAL.
WHEREFORE, petitioner respectfully
prayed that after the necessary
proceedings are had, she be allowed
to resume using her maiden name of
Elisea Laperal.
The petition was opposed by the City
Attorney of Baguio on the ground that the
same violates the provisions of Article 370
(should be 372) of the Civil Code, and that it
is not sanctioned by the Rules of Court.
In its decision of October 31, 1960, the court
denied the petition for the reason that Article

372 of the Civil Code requires the wife, even

after she is decreed legally separated from
her husband, to continue using the name
and surname she employed before the legal
separation. Upon petitioner's motion,
however, the court, treating the petition as
one for change of name, reconsidered its
decision and granted the petition on the
ground that to allow petitioner, who is a
businesswoman decreed legally separated
from her husband, to continue using her
married name would give rise to confusion in
her finances and the eventual liquidation of
the conjugal assets. Hence, this appeal by
the State.
The contention of the Republic finds support
in the provisions of Article 372 of the New
Civil Code which reads:
ART. 372. When legal separation has
been granted, the wife shall
continue using her name and surname
employed before the legal separation.
(Emphasis supplied)
Note that the language of the statute is
mandatory that the wife, even after the legal
separation has been decreed, shall continue
using her name and surname employed
before the legal separation. This is so
because her married status is unaffected by
the separation, there being no severance of
the vinculum. It seems to be the policy of the
law that the wife should continue to use the
name indicative of her unchanged status for
the benefit of all concerned.
The appellee contends, however, that the
petition is substantially for change of her
name from Elisea L. Santamaria, the one she
has been using, since her marriage, to Elisea
Laperal, her maiden name, giving as reason
or cause therefor her being legally separated
from the husband Enrique R. Santamaria,
and the fact that they have ceased to live
together for many years.
There seems to be no dispute that in the
institution of these proceedings, the
procedure prescribed in Rule 103 of the Rules
of Court for change of name has been
observed. But from the petition quoted in full
at the beginning of these opinion, the only
reason relied upon for the change of name is
the fact that petitioner is legally separated
from her husband and has, in fact, ceased to
live with him for many years. It is doubtful, to
say the least, whether Rule 103 which refers

to change of name in general, may prevail

over the specific provisions of Article 372 of
the New Civil Code with regards to married
women legally separated from their
husbands. Even, however, applying Rule 103
to this case, the fact of legal separation
alone which is the only basis for the
petition at bar is, in our opinion, not a
sufficient ground to justify a change of the
name of herein petitioner, for to hold
otherwise would be to provide an easy
circumvention of the mandatory provisions of
Article 372.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

It is true that in the second decision which

reconsidered the first it is stated that as the
petitioner owns extensive business interests,
the continued used of her husband surname
may cause undue confusion in her finances
and the eventual liquidation of the conjugal
assets. This finding is however without basis.
In the first place, these were not the causes
upon which the petition was based; hence,
obviously no evidence to this effect had been
adduced. Secondly, with the issuance of the
decree of legal separation in 1958, the
conjugal partnership between petitioner and
her husband had automatically been
dissolved and liquidated. (Art. 106[2], Civil
Cod). Consequently, there could be no more
occasion for an eventual liquidation of the
conjugal assets.

September 2004 in CA-G.R. CV No. 66724

WHEREFORE, the order of the lower court of

December 1, 1960, granting the petition, is
hereby set aside and the petition dismissed.
Without costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L., Paredes,
Dizon, Regala and Makalintal, JJ., concur.

DECISION
CHICO-NAZARIO, J.:

Before this Court is a Petition for

Review on Certiorari filed by
petitioner Restituto Alcantara assailing the
Decision[1] of the Court of Appeals dated 30
denying petitioners appeal and affirming the
decision[2] of the Regional Trial Court (RTC)
of Makati City, Branch 143, in Civil Case No.
97-1325 dated 14 February 2000, dismissing
his petition for annulment of marriage.
The antecedent facts are:
A petition for annulment of
marriage[3] was filed by petitioner against
respondent Rosita A. Alcantara alleging that
on 8 December 1982 he and respondent,
without securing the required marriage
license, went to the Manila City Hall for the
purpose of looking for a person who could
arrange a marriage for them. They met a
person who, for a fee, arranged their
wedding before a certain
Rev. Aquilino Navarro, a Minister of the
Gospel of the CDCC BR Chapel.[4] They got
married on the same day, 8 December
1982. Petitioner and respondent went
through another marriage ceremony at the

THIRD DIVISION

San Jose de Manuguit Church

in Tondo, Manila, on 26 March 1983. The

RESTITUTO M. ALCANTARA,
Petitioner,

marriage was likewise celebrated without the

parties securing a marriage license. The
alleged marriage license, procured
in Carmona, Cavite, appearing on the

- versus -

marriage contract, is a sham, as neither

party was a resident of Carmona, and they
never went to Carmona to apply for a license
with the local civil registrar of the said

ROSITA A. ALCANTARA and HON.

COURT OF APPEALS,
Respondents.

place. On 14 October 1985, respondent

gave birth to their child Rose

Ann Alcantara. In 1988, they parted ways

and lived separate lives. Petitioner prayed

As earlier stated, the Court of Appeals

that after due hearing, judgment be issued

rendered its Decision dismissing the

declaring their marriage void and ordering

petitioners appeal. His Motion for

the Civil Registrar to cancel the

Reconsideration was likewise denied in a

corresponding marriage contract[5] and its

resolution of the Court of Appeals dated 6

entry on file.[6]
Answering petitioners petition for

April 2005.[12]
The Court of Appeals held that the

annulment of marriage, respondent asserts

marriage license of the parties is presumed

the validity of their marriage and maintains

to be regularly issued and petitioner had not

that there was a marriage license issued as

presented any evidence to overcome the

evidenced by a certification from the Office

presumption. Moreover, the parties

of the Civil Registry

marriage contract being a public document is

of Carmona, Cavite. Contrary to petitioners

a prima facie proof of the questioned

representation, respondent gave birth to

marriage under Section 44, Rule 130 of the

their first child named Rose

Rules of Court.[13]

Ann Alcantara on 14 October 1985 and to

another daughter named Rachel
Ann Alcantara on 27 October 1992.
[7]

Petitioner has a mistress with whom he

has three children.[8] Petitioner only filed the

annulment of their marriage to evade

In his Petition before this Court,

petitioner raises the following issues for
resolution:
a.

The Honorable Court of

Appeals committed a
reversible error when it
ruled that the Petition for
Annulment has no legal
and factual basis despite
the evidence on record
that there was no
marriage license at the
precise moment of the
solemnization of the
marriage.

b.

The Honorable Court of

Appeals committed a
reversible error when it
gave weight to the
Marriage License No.
7054133 despite the fact
that the same was not
identified and offered as
evidence during the trial,
and was not the Marriage
license number
appearing on the face of
the marriage contract.

c.

The Honorable Court of

Appeals committed a
reversible error when it
failed to apply the ruling
laid down by this
Honorable Court in the
case of Sy vs. Court of
Appeals. (G.R. No.

prosecution for concubinage.[9] Respondent,

in fact, has filed a case
for concubinage against petitioner before
theMetropolitan Trial Court of Mandaluyong C
ity, Branch 60.[10] Respondent prays that the
petition for annulment of marriage be denied
for lack of merit.
On 14 February 2000, the RTC
of Makati City, Branch 143, rendered its
Decision disposing as follows:
The foregoing
considered, judgment is
rendered as follows:
1.
The Petition is
dismissed for lack of merit;
2.
Petitioner is
ordered to pay respondent the
sum of twenty thousand pesos
(P20,000.00) per month as
support for their two (2)
children on the first five (5)
days of each month; and
[11]

3.

To pay the costs.

127263, 12 April
2000 [330 SCRA 550]).
d.

The Honorable Court of

Appeals committed a
reversible error when it
failed to relax the
observance of procedural
rules to protect and
promote the substantial
rights of the party
litigants.[14]

We deny the petition.

Petitioner submits that at the precise
time that his marriage with the respondent
was celebrated, there was no marriage
license because he and respondent just went
to theManila City Hall and dealt with a fixer
who arranged everything for them.[15] The
wedding took place at the stairs
in Manila City Hall and not in CDCC BR

80(3)[18] in relation to Article 58 of the same

Code.[19]
Article 53 of the Civil Code[20] which
was the law applicable at the time of the
marriage of the parties states:
Art. 53. No marriage
shall be solemnized unless all
these requisites are complied
with:
(1)
Legal capacity of
the contracting parties;
(2)
freely given;

Their consent,

(3)
Authority of the
person performing the
marriage; and
(4)
A marriage
license, except in a marriage of
exceptional character.

Chapel where Rev.Aquilino Navarro who

solemnized the marriage belongs.[16] He and

The requirement and issuance of a

respondent did not go to Carmona, Cavite, to

marriage license is the States demonstration

apply for a marriage license. Assuming a

of its involvement and participation in every

marriage license fromCarmona, Cavite, was

marriage, in the maintenance of which the

issued to them, neither he nor the

general public is interested.[21]

respondent was a resident of the place. The

certification of the Municipal Civil Registrar

Petitioner cannot insist on the absence

of Carmona, Cavite, cannot be given weight

of a marriage license to impugn the validity

because the certification states that

of his marriage. The cases where the court

Marriage License number 7054133 was

considered the absence of a marriage license

issued in favor of Mr. Restituto Alcantara and

as a ground for considering the marriage

Miss Rosita Almario[17] but their marriage

void are clear-cut.

contract bears the number 7054033 for their

marriage license number.

In Republic of the Philippines v. Court

of Appeals,[22] the Local Civil Registrar issued

The marriage involved herein having

a certification of due search and inability to

been solemnized on 8 December 1982, or

find a record or entry to the effect that

prior to the effectivity of the Family Code, the

Marriage License No. 3196182 was issued to

applicable law to determine its validity is the

the parties. The Court held that the

Civil Code which was the law in effect at the

certification of due search and inability to

time of its celebration.

find a record or entry as to the purported

marriage license, issued by the Civil

A valid marriage license is a requisite

Registrar of Pasig, enjoys probative value, he

of marriage under Article 53 of the Civil

being the officer charged under the law to

Code, the absence of which renders the

keep a record of all data relative to the

marriage void ab initio pursuant to Article

issuance of a marriage license. Based on

said certification, the Court held that there is

number. A certification to this effect was

absence of a marriage license that would

also issued by the local civil registrar

render the marriage void ab initio.

of Carmona, Cavite.[25] The certification

moreover is precise in that it specifically

In Cario v. Cario,

[23]

the Court

identified the parties to whom the marriage

considered the marriage of therein petitioner

license was issued,

Susan Nicdao and the deceased Santiago

namely RestitutoAlcantara and

S. Carino as void ab initio. The records

Rosita Almario, further validating the fact

reveal that the marriage contract of

that a license was in fact issued to the

petitioner and the deceased bears no

parties herein.

marriage license number and, as certified by

the Local Civil Registrar of San Juan, Metro

The certification of Municipal Civil

Manila, their office has no record of such

Registrar Macrino L. Diaz of Carmona, Cavite,

marriage license. The court held that the

reads:

certification issued by the local civil registrar

is adequate to prove the non-issuance of the
marriage license. Their marriage having
been solemnized without the necessary
marriage license and not being one of the
marriages exempt from the marriage license
requirement, the marriage of the petitioner
and the deceased is undoubtedly
void ab initio.
In Sy v. Court of Appeals,[24] the

This is to certify that as

per the registry Records of
Marriage filed in this office,
Marriage License No. 7054133
was issued in favor of
Mr. Restituto Alcantara and Miss
Rosita Almario on December 8,
1982.
This Certification is
being issued upon the request
of Mrs. Rosita A. Alcantara for
whatever legal purpose or
intents it may serve.[26]

marriage license was issued on 17

September 1974, almost one year after the
ceremony took place on 15 November
1973. The Court held that the ineluctable
conclusion is that the marriage was indeed
contracted without a marriage license.

This certification enjoys the

presumption that official duty has been
regularly performed and the issuance of the
marriage license was done in the regular
conduct of official business.[27] The
presumption of regularity of official acts may

In all these cases, there was clearly an

be rebutted by affirmative evidence of

absence of a marriage license which

irregularity or failure to perform a

rendered the marriage void.

duty. However, the presumption prevails

until it is overcome by no less than clear and

Clearly, from these cases, it can be

convincing evidence to the contrary. Thus,

deduced that to be considered void on the

unless the presumption is rebutted, it

ground of absence of a marriage license, the

becomes conclusive. Every reasonable

law requires that the absence of such

intendment will be made in support of the

marriage license must be apparent on the

presumption and, in case of doubt as to an

marriage contract, or at the very least,

officers act being lawful or unlawful,

supported by a certification from the local

construction should be in favor of its

civil registrar that no such marriage license

lawfulness.[28] Significantly, apart from

was issued to the parties. In this case, the

these, petitioner, by counsel, admitted that a

marriage contract between the petitioner

marriage license was, indeed, issued

and respondent reflects a marriage license

in Carmona, Cavite.[29]

marriage took place because he initiated

it.[33] Petitioner is an educated person. He

Petitioner, in a faint attempt to

demolish the probative value of the marriage

is a mechanical engineer by profession. He

license, claims that neither he nor

knowingly and voluntarily went to

respondent is a resident

the Manila City Hall and likewise, knowingly

of Carmona, Cavite. Even then, we still hold

and voluntarily, went through a marriage

that there is no sufficient basis to annul

ceremony. He cannot benefit from his action

petitioner and respondents

and be allowed to extricate himself from the

marriage. Issuance of a marriage license in a

marriage bond at his mere say-so when the

city or municipality, not the residence of

situation is no longer palatable to his taste or

either of the contracting parties, and

suited to his lifestyle. We cannot

issuance of a marriage license despite the

countenance such effrontery. His attempt to

absence of publication or prior to the

make a mockery of the institution of

completion of the 10-day period for

marriage betrays his bad faith.[34]

publication are considered mere irregularities

that do not affect the validity of the
marriage.

[30]

Petitioner and respondent went

An irregularity in any of the

through a marriage ceremony twice in a span

formal requisites of marriage does not affect

of less than one year utilizing the same

its validity but the party or parties

marriage license. There is no claim that he

responsible for the irregularity are civilly,

criminally and administratively liable.

[31]

went through the second wedding ceremony

in church under duress or with a gun to his
head. Everything was executed without nary

Again, petitioner harps on the

a whimper on the part of the petitioner.

discrepancy between the marriage license

number in the certification of the Municipal

In fact, for the second wedding of

Civil Registrar, which states that the

petitioner and respondent, they presented to

marriage license issued to the parties is No.

the San Jose de Manuguit Church the

7054133, while the marriage contract states

marriage contract executed during the

that the marriage license number of the

previous wedding ceremony before

parties is number 7054033. Once more, this

the Manila City Hall. This is confirmed in

argument fails to sway us. It is not

petitioners testimony as follows

impossible to assume that the same is a

mere a typographical error, as a closer
scrutiny of the marriage contract reveals the
overlapping of the numbers 0 and 1, such
that the marriage license may read either as
7054133 or 7054033. It therefore does not
detract from our conclusion regarding the
existence and issuance of said marriage
license to the parties.
Under the principle that he who comes
to court must come with clean hands,
[32]

petitioner cannot pretend that he was not

responsible or a party to the marriage

celebration which he now insists took place
without the requisite marriage
license. Petitioner admitted that the civil

WITNESS
As I remember your
honor, they asked us to
get the necessary
document prior to the
wedding.
COURT
What particular
document did the church
asked you to produce? I
am referring to the San
Jose de Manuguit church.
WITNESS
I dont remember your
honor.
COURT

Were you asked by the

church to present a
Marriage License?
WITNESS
I think they asked us for
documents and I said we
have already a Marriage
Contract and I dont know
if it is good enough for
the marriage and they
accepted it your honor.

presumed in the absence of any showing to

the contrary.[37] Moreover, the solemnizing
officer is not duty-bound to investigate
whether or not a marriage license has been
duly and regularly issued by the local civil
registrar. All the solemnizing officer needs to
know is that the license has been issued by
the competent official, and it may be
presumed from the issuance of the license
that said official has fulfilled the duty to
ascertain whether the contracting parties

COURT

had fulfilled the requirements of law.[38]

In other words, you

represented to the San
Jose de Manuguit church
that you have with you
already a Marriage
Contract?
WITNESS
Yes your honor.

Semper praesumitur pro matrimonio.

The presumption is always in favor of the
validity of the marriage.[39] Every intendment
of the law or fact leans toward the validity of
the marriage bonds. The Courts look upon
this presumption with great favor. It is not to
be lightly repelled; on the contrary, the

COURT

presumption is of great weight.

That is why the San Jose

de Manuguit church
copied the same
marriage License in the
Marriage Contract issued
which Marriage License is
Number 7054033.
WITNESS
Yes your honor.[35]

WHEREFORE, premises considered,

the instant Petition is DENIED for lack of
merit. The decision of the Court of Appeals
dated 30 September 2004 affirming the
decision of the Regional Trial Court, Branch
143 of Makati City, dated 14 February 2000,
are AFFIRMED. Costs against petitioner.
SO ORDERED.

The logical conclusion is that petitioner

was amenable and a willing participant to all

MINITA V. CHICO-NAZARIO
Associate Justice

that took place at that time. Obviously, the

church ceremony was confirmatory of their
civil marriage, thereby cleansing whatever
irregularity or defect attended the civil
wedding.[36]
Likewise, the issue raised by petitioner
-- that they appeared before a fixer who
arranged everything for them and who
facilitated the ceremony before a certain
Rev.Aquilino Navarro, a Minister of the
Gospel of the CDCC Br Chapel -- will not
strengthen his posture. The authority of the
officer or clergyman shown to have
performed a marriage ceremony will be

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-48183
1941

November 10,

THE PEOPLE OF THE

PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO A. SCHNECKENBURGER, ET
AL., defendants-appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and
Acting Solicitor Luciano for appellee.
MORAN, J.:
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:
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.
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 coaccused, 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 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.

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)
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.
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:
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.)

VICENTA F. ESCAO, ET AL., defendantsappellees.

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.

I. V. Binamira & F. B. Barria for plaintiffappellant.

Jalandoni & Jarnir for defendants-appellees.

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.
Judgment is reversed and the accused is
hereby acquitted, without costs.
Avancea, C.J., Abad Santos, Diaz and
Horilleno, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-19671
1965

November 29,

PASTOR B. TENCHAVEZ, plaintiffappellant,

vs.

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

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 defendantsappellees, Vicente, Mamerto and Mena, 1 all
surnamed "Escao," respectively. 2
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'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 gobetween, 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.
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 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.
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. "1-Escao"), 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").
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.
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).
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.
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 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 appellant ascribes, as errors of the trial
court, the following:
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;.
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.

That on 24 February 1948 the plaintiffappellant, 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.

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 nonprosecution.

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

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:

SEC. 1. Essential requisites. Essential

requisites for marriage are the legal
capacity of the contracting parties and
consent. (Emphasis supplied)
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:
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.
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 suing for divorce implies
an admission that her marriage to plaintiff
was valid and binding.
Defendant Vicenta Escao argues that when
she contracted the marriage she was under

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 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:
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.
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 plaintiffappellant Tenchavez to a decree of "legal
separation under our law, on the basis of
adultery" (Revised Penal Code, Art. 333).
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 abovementioned, 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:
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:
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).
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 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.
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.
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 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.

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

Bengzon, C.J., Bautista Angelo, Concepcion,

Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.

Footnotes
1

The latter was substituted by her

heirs when she died during the
pendency of the case in the trial court.
2

The original complaint included the

Roman Catholic Church as a
defendant, sought to be enjoined from
acting on a petition for the
ecclesiastical annulment of the
marriage between Pastor Tenchavez
and Vicenta Escao; the case against
the defendant Church was dismissed
on a joint motion.
3

In the present Civil Code the contrary

rule obtains (Art. 53).
4

She was naturalized as an American

citizen only on 8 August 1958.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her
substitute MACARIO LAPUZ, petitionerappellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY
UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

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

Petition, filed after the effectivity of Republic
Act 5440, for review by certiorari of an order,
dated 29 July 1969, of the Juvenile and
Domestic Relations Court of Manila, in its
Civil Case No. 20387, dismissing said case
for legal separation on the ground that the
death of the therein plaintiff, Carmen O.
Lapuz Sy, which occurred during the

pendency of the case, abated the cause of

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

On 26 June 1969, counsel for deceased

petitioner moved to substitute the deceased
Carmen by her father, Macario Lapuz.
Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order
under review, dismissing the case. 2 In the
body of the order, the court stated that the
motion to dismiss and the motion for
substitution had to be resolved on the
question of whether or not the plaintiff's
cause of action has survived, which the court
resolved in the negative. Petitioner's moved
to reconsider but the motion was denied on
15 September 1969.
After first securing an extension of time to
file a petition for review of the order of
dismissal issued by the juvenile and
domestic relations court, the petitioner filed
the present petition on 14 October 1969. The
same was given due course and answer
thereto was filed by respondent, who prayed
for the affirmance of the said order. 3
Although the defendant below, the herein
respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after
the court below dismissed the case. He
acquiesced in the dismissal of said
counterclaims by praying for the affirmance
of the order that dismissed not only the
petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through
her self-assumed substitute for the lower
court did not act on the motion for
substitution) stated the principal issue to be
as follows:
When an action for legal
separation is converted by the
counterclaim into one for a
declaration of nullity of a
marriage, does the death of a
party abate the proceedings?
The issue as framed by petitioner injects into
it a supposed conversion of a legal
separation suit to one for declaration of
nullity of a marriage, which is without basis,
for even petitioner asserted that "the
respondent has acquiesced to the dismissal
of his counterclaim" (Petitioner's Brief, page
22). Not only this. The petition for legal
separation and the counterclaim to declare
the nullity of the self same marriage can

stand independent and separate

adjudication. They are not inseparable nor
was the action for legal separation converted
into one for a declaration of nullity by the
counterclaim, for legal separation presupposes a valid marriage, while the petition
for nullity has a voidable marriage as a precondition.
The first real issue in this case is: Does the
death of the plaintiff before final decree, in
an action for legal separation, abate the
action? If it does, will abatement also apply if
the action involves property rights? .
An action for legal separation which involves
nothing more than the bed-and-board
separation of the spouses (there being no
absolute divorce in this jurisdiction) is purely
personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing
only the innocent spouse (and no one else)
to claim legal separation; and in its Article
108, by providing that the spouses can, by
their reconciliation, stop or abate the
proceedings and even rescind a decree of
legal separation already rendered. Being
personal in character, it follows that the
death of one party to the action causes the
death of the action itself actio personalis
moritur cum persona.
... When one of the spouses is
dead, there is no need for
divorce, because the marriage
is dissolved. The heirs cannot
even continue the suit, if the
death of the spouse takes place
during the course of the suit
(Article 244, Section 3). The
action is absolutely dead (Cass.,
July 27, 1871, D. 71. 1. 81;
Cass. req., May 8, 1933, D. H.
1933, 332.") 4 .
Marriage is a personal relation
or status, created under the
sanction of law, and an action
for divorce is a proceeding
brought for the purpose of
effecting a dissolution of that
relation. The action is one of a
personal nature. In the absence
of a statute to the contrary, the
death of one of the parties to
such action abates the action,
for the reason that death has
settled the question of
separation beyond all

controversy and deprived the

court of jurisdiction, both over
the persons of the parties to the
action and of the subject-matter
of the action itself. For this
reason the courts are almost
unanimous in holding that the
death of either party to a
divorce proceeding, before final
decree, abates the action. 1
Corpus Juris, 208; Wren v. Moss,
2 Gilman, 72; Danforth v.
Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E.
578; 134 Am St. Rep. 830; 17
Ann. Cas. 874; Wilcon v. Wilson,
73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark.
452, 97 S. W. 659; McCurley v.
McCurley, 60 Md. 185, 45 Am.
Rep. 717; Begbie v. Begbie, 128
Cal. 155, 60 Pac. 667, 49 L.R.A.
141. 5
The same rule is true of causes of action and
suits for separation and maintenance
(Johnson vs. Bates, Ark. 101 SW 412; 1
Corpus Juris 208).
A review of the resulting changes in property
relations between spouses shows that they
are solely the effect of the decree of legal
separation; hence, they can not survive the
death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil
Code provides: .
Art. 106. The decree of legal
separation shall have the
following effects:
(1) The spouses shall be entitled
to live separately from each
other, but the marriage bonds
shall not be severed; .
(2) The conjugal partnership of
gains or the absolute conjugal
community of property shall be
dissolved and liquidated, but
the offending spouse shall have
no right to any share of the
profits earned by the
partnership or community,
without prejudice to the
provisions of article 176;
(3) The custody of the minor
children shall be awarded to the

innocent spouse, unless

otherwise directed by the court
in the interest of said minors,
for whom said court may
appoint a guardian;
(4) The offending spouse shall
be disqualified from inheriting
from the innocent spouse by
intestate succession. Moreover,
provisions in favor of the
offending spouse made in the
will of the innocent one shall be
revoked by operation of law.
From this article it is apparent that the right
to the dissolution of the conjugal partnership
of gains (or of the absolute community of
property), the loss of right by the offending
spouse to any share of the profits earned by
the partnership or community, or his
disqualification to inherit by intestacy from
the innocent spouse as well as the
revocation of testamentary provisions in
favor of the offending spouse made by the
innocent one, are all rights and disabilities
that, by the very terms of the Civil Code
article, are vested exclusively in the persons
of the spouses; and by their nature and
intent, such claims and disabilities are
difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is
not a claim that "is not thereby extinguished"
after a party dies, under Section 17, Rule 3,
of the Rules of Court, to warrant continuation
of the action through a substitute of the
deceased party.
Sec. 17. Death of party. After a
party dies and the claim is not
thereby extinguished, the court
shall order, upon proper notice,
the legal representative of the
deceased to appear and to be
substituted for the deceased,
within a period of thirty (30)
days, or within such time as
may be granted...
The same result flows from a consideration
of the enumeration of the actions that
survive for or against administrators in
Section 1, Rule 87, of the Revised Rules of
Court:
SECTION 1. Actions which may
and which may not be brought
against executor or
administrator. No action upon a

claim for the recovery of money

or debt or interest thereon shall
be commenced against the
executor or administrator; but
actions to recover real or
personal property, or an interest
therein, from the estate, or to
enforce a lien thereon, and
actions to recover damages for
an injury to person or property,
real or personal, may be
commenced against him.
Neither actions for legal separation or for
annulment of marriage can be deemed fairly
included in the enumeration..
A further reason why an action for legal
separation is abated by the death of the
plaintiff, even if property rights are involved,
is that these rights are mere effects of
decree of separation, their source being the
decree itself; without the decree such rights
do not come into existence, so that before
the finality of a decree, these claims are
merely rights in expectation. If death
supervenes during the pendency of the
action, no decree can be forthcoming, death
producing a more radical and definitive
separation; and the expected consequential
rights and claims would necessarily remain
unborn.
As to the petition of respondent-appellee
Eufemio for a declaration of nullity ab
initio of his marriage to Carmen Lapuz, it is
apparent that such action became moot and
academic upon the death of the latter, and
there could be no further interest in
continuing the same after her demise, that
automatically dissolved the questioned
union. Any property rights acquired by either
party as a result of Article 144 of the Civil
Code of the Philippines 6 could be resolved
and determined in a proper action for
partition by either the appellee or by the
heirs of the appellant.
In fact, even if the bigamous marriage had
not been void ab initio but only voidable
under Article 83, paragraph 2, of the Civil
Code, because the second marriage had
been contracted with the first wife having
been an absentee for seven consecutive
years, or when she had been generally
believed dead, still the action for annulment
became extinguished as soon as one of the
three persons involved had died, as provided
in Article 87, paragraph 2, of the Code,

requiring that the action for annulment

should be brought during the lifetime of any
one of the parties involved. And furthermore,
the liquidation of any conjugal partnership
that might have resulted from such voidable
marriage must be carried out "in the testate
or intestate proceedings of the deceased
spouse", as expressly provided in Section 2
of the Revised Rule 73, and not in the
annulment proceeding.
ACCORDINGLY, the appealed judgment of the
Manila Court of Juvenile and Domestic
Relations is hereby affirmed. No special
pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

Footnotes
1 Per Annex "G" to
Petition, rollo, pages 96-98,
being the motion to dismiss.
2 Per Annex "I" to Petition, rollo,
pages 132-137, being the order
of dismissal.
3 Answer, rollo, pages 174-182.
4 Planiol, Civil Law Treatise, Vol.
1, Part 1, pages 658-659.
5 Bushnell v. Cooper, 124 N. E.
521, 522.
6 "Art. 144. When a man and a
woman live together as
husband and wife, but they are
not married, or that marriage is
void from the beginning, the
property acquired by either or
both of them through their work
or industry or their wages and
salaries shall be governed by
the rules on co-ownership."
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-49542 September 12, 1980

ANTONIO MACADANGDANG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS
and ELIZABETH MEJIAS, respondents.

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

provisions of the Civil Code and Rules of

Court and authorities (pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI
decision to the Court of Appeals (p. 59, In her
appeal, appellant assigned these errors:
1. The Honorable Trial Court
erred in applying in the instant
case the provisions of Arts. 255
and 256 of the Civil Code and
Secs. 4[a], 4[b] and 4[c], Rule
131, of the Revised Rules of
Court (p. 18, rec.);
2. The Honorable Trial Court
erred in holding that plaintiffappellant cannot validly
question the legitimacy of her
son, Rolando Macadangdang, by
a collateral attack without
joining her legal husband as a
party in the instant case (p. 18,
rec.).
In its decision handed down on June 2, 1978,
the Court of Appeals reversed the lower
court's decision (p. 47, and thus declared
minor Rolando to be an illegitimate son of
Antonio Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals
denied appellant's motions for
reconsideration for lack of merit. (p. 56, rec.).
Hence, petitioner filed this petition on
January 12, 1979.
The issues boil down to:
1. Whether or not the child
Rolando is conclusively
presumed the legitimate issue
of the spouses Elizabeth Mejias
and Crispin Anahaw; and
2. Whether or not the wife may
institute an action that would
bastardize her child without
giving her husband, the legally
presumed father, an
opportunity to be heard.
The crucial point that should be emphasized
and should be straightened out from the very
beginning is the fact that respondent's initial
illicit affair with petitioner occurred sometime
in March, 1967 and that by reason thereof,
she and her husband separated. This fact
surfaced from the testimony of respondent
herself in the hearing of September 21, 1972
when this case was still in the lower court.
The pertinent portions of her testimony are
thus quoted:
By Atty. Fernandez:

Q What did you feel as

a result of the incident
where Antonio
Macadangdang used pill
and took advantage of
your womanhood?
A I felt worried,
mentally shocked
and humiliated.
Q If these feelings:
worries, mental shock
and humiliation, if
estimated in monetary
figures, how much win be
the amount?
A Ten thousand
pesos, sir.
Q And because
of the incidental
what happened to
your with Crispin
Anahaw.
xxx xxx xxx
WITNESS:
A We separate, sir. (pp.
61-63, T.s.n., Civil Case
No. 263, Sept. 21, 1972;
emphasis supplied).
From the foregoing line of questions and
answers, it can be gleaned that respondent's
answers were given with spontaneity and
with a clear understanding of the questions
posed. There cannot be any other meaning
or interpretation of the word "incident" other
than that of the initial contact between
petitioner and respondent. Even a layman
would understand the clear sense of the
question posed before respondent and her
categorical and spontaneous answer which
does not leave any room for interpretation. It
must be noted that the very question of her
counsel conveys the assumption of an
existing between respondent and her
husband.
The finding of the Court of Appeals that
respondent and her husband were separated
in 1965 cannot therefore be considered
conclusive and binding on this Court. It is
based solely on the testimony of respondent
which is self-serving. Nothing in the records
shows that her statement was confirmed or
corroborated by another witness and the
same cannot be treated as borne out by the
record or that which is based on substantial
evidence. It is not even confirmed by her
own husband, who was not impleaded.

In the case of Tolentino vs. De Jesus (L32797, 56 SCRA 167 [1974], this Court
restated that the findings of facts of the
Court of Appeals are conclusive on the
parties and on the Supreme Court, unless (1)
the conclusion is a finding grounded entirely
on speculation, surmise, and conjectures; (2)
the inference made is manifestly mistaken;
(3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of
facts; (5) the Court of Appeals went beyond
the issues of the case and its findings are
contrary to the admission of both appellant
and appellee; (6) the findings of facts of the
Court of Appeals are contrary to those of the
trial court; (7) said findings of facts are
conclusions without citation of specific
evidence on which they are based; (8) the
facts set forth in the petition as well as in the
petitioner's main and reply briefs are not
disputed by the respondent; and (9) when
the finding of facts of the Court of Appeals is
premised on the absence of evidence and
is contradicted by evidence on
record [Pioneer Insurance and Surety
Corporation vs. Yap, L-36232, December 19,
1974; Roque vs. Buan, L-22459, 21 SCRA 642
(1967); Ramos vs. Pepsi-cola Bottling
Company of the Philippines, L-225533, 19
SCRA 289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court
reiterated the aforestated doctrine adding
four more exceptions to the general rule.
This case invoked the same ruling in the
previous case of Ramos vs. Pepsi-Cola
Bottling Company, etc., supra.
In the recent case of Francisca Alsua-Betts,
et al. vs. Court of Appeals, et al. (L-46430-31,
July 30, 1979), which petitioner aptly
invokes, this Court thus emphasized:
... But what should not be
ignored by lawyers and litigants
alike is the more basic principle
that the "findings of fact"
described as "final" or
"conclusive" are those borne
out by the record or those
which are based upon
substantial evidence. The
general rule laid down by the
Supreme Court does not declare
the absolute correctness of all
the findings of fact made by the
Court of Appeals. There are
exceptions to the general rule,
where we have reviewed the
findings of fact of the Court of
Appeals ... (emphasis supplied).
The following provisions of the Civil Code and
the Rules of Court should be borne in mind:
Art. 255. Children born after one
hundred and eighty days

following the celebration of the

marriage, and before three
hundred days following its
dissolution or the separation of
the spouses shall be presumed
to be legitimate.
Against this presumption, no
evidence shall be admitted
other than that of the physical
impossibility of the husband's
having access to his wife within
the first one hundred and
twenty days of the three
hundred which preceded the
birth of the child.
This physical impossibility may
be caused:
(1) By the impotence of the
husband;
(2) By the fact that the husband
and wife were separately, in
such a way that access was not
possible;
(3) By the serious illness of the
husband.
Art. 256. The child shall be
presumed legitimate, although
the mother may have declared
against its legitimacy or may
have been sentenced as an
adulteress.
Art. 257. Should the wife
commit adultery at or about the
time of the conception of the
child, but there was no physical
impossibility of access between
her and her husband as set
forth in article 255, the child
is prima facie presumed to be
illegitimate if it appears highly
improbable, for ethnic reasons,
that the child is that of the
husband. For the purposes of
this article, the wife's adultery
need not be proved in a criminal
case.
xxx xxx xxx
Sec. 4. Quasi-conclusive
presumptions of legitimacy
(a) Children born after one
hundred eighty days following
the celebration of the marriage,
and before three hundred days
following its dissolution or the
separation of the spouses shall
be presumed legitimate.

Against presumption no
evidence be admitted other
than that of the physical
impossibility of the husband's
having access to his wife within
the first one hundred and
twenty days of the three
hundred which preceded the
birth of the child.
This physical impossibility may
be caused:
[1] By the impotence of the
husband
[2] By the fact that the husband
and the wife were living
separately, in such a way that
access was not possible;
[3] By the serious illness of the
husband;
(b) The child shall be presumed
legitimate although the mother
may have declared against its
legitimacy or may have been
sentenced as an adulteress.
(c) Should the wife commit
adultery at or about the time of
the conception of the child, but
there was no physical
impossibility of access between
her and her husband as set
forth above, the child is
presumed legitimate, unless it
appears highly improbable, for
ethnic reasons, that the child is
that of the husband. For the
purpose of the rule, the wife's
adultery need not be proved in
a criminal case. ... (Rule 131,
Rules of Court).
Whether or not respondent and her husband
were separated would be immaterial to the
resolution of the status of the child Rolando.
What should really matter is the fact that
during the initial one hundred twenty days of
the three hundred which preceded the birth
of the renamed child, no concrete or even
substantial proof was presented to establish
physical impossibility of access between
respondent and her spouse. From her very
revealing testimony, respondent declared
that she was bringing two sacks of rice to
Samal for her children; that her four children
by her husband in her mother's house in the
said town; that her alleged estranged
husband also lived in her mother's place (p.
73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21,
1972). It should also be noted that even
during her affair with petitioner and right
after her delivery, respondent went to her

mother's house in Samal for treatment. Thus,

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

nine-month pregnancy. Respondent herself

and the yaya, Patrocinia Avila, declared that
the baby was born in the rented house at
Carpenter Street, which birth was obvisouly
normal; that he was such a healthy baby that
barely 5 days after his birth, he was already
cared for by said yaya when respondent
became sick (pp. 28, 29 & 43, t.s.n., Sept.
21, 1972); and that when he was between 15
days and 2 months of age, respondent left
him to the care of theyaya when the former
left for Samal for treatment and returned
only in February, 1968 (pp. 30-32, t.s.n.,
Sept. 21, 1972). From the aforestated facts,
it can be indubitably said that the child was a
full-term baby at birth, normally delivered,
and raised normally by the yaya. If it were
otherwise or if he were born prematurely, he
would have needed special care like being
placed in an incubator in a clinic or hospital
and attended to by a physician, not just a
mere yaya. These all point to the fact that
the baby who was born on October 30, 1967
or 7 months from the first sexual encounter
between petitioner and respondent was
conceived as early as January, 1967. How
then could he be the child of petitioner?

This presumption of legitimacy is based on

the assumption that there is sexual union in
marriage, particularly during the period of
conception. Hence, proof of the physical
impossibility of such sexual union prevents
the application of the presumption (Tolentino,
Commentaries & Jurisprudence on the Civil
Code, Vol. 1, p. 513 citing Bevilaqua, Familia
p. 311).

In Our jurisprudence, this Court has been

more definite in its pronouncements on the
value of baptismal certificates. It thus ruled
that while baptismal and marriage
certificates may be considered public
documents, they are evidence only to prove
the administration of the sacraments on the
dates therein specified but not the
veracity of the states or declarations made
therein with respect to his kinsfolk and/or
citizenship (Paa vs. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus vs.
Novero (L-22378, 23 SCRA 1331 [1968]), this
Court held that a baptismal administered, in
conformity with the rites of the Catholic
Church by the priest who baptized the child,
but it does not prove the veracity of the
declarations and statements contained in the
certificate that concern the relationship of
the person baptized. Such declarations and
statements, in order that their truth may be
admitted, must indispensably be shown by
proof recognized by law.

To defeat the presumption of legitimacy,

therefore, there must be physical
impossibility of access by the husband to the
wife during the period of conception. The law
expressly refers to physical impossibility.
Hence, a circumstance which makes sexual
relations improbable, cannot defeat the
presumption of legitimacy; but it may be
proved as a circumstance to corroborate
proof of physical impossibility of access
(Tolentino, citing Bonet 352; 4 Valverde 408).

The child Rolando is presumed to be the

legitimate son of respondent and her spouse.
This presumption becomes conclusive in the
absence of proof that there was physical
impossibility of access between the spouses
in the first 120 days of the 300 which
preceded the birth of the child. This
presumption is actually quasi-conclusive and
may be rebutted or refuted by only one
evidence the physical impossibility of
access between husband and wife within the
first 120 days of the 300 which preceded the
birth of the child. This physical impossibility
of access may be caused by any of these:

1. Impotence of the husband;

2. Living separately in such a
way that access was impossible
and
3. Serious illness of the
husband.

The modern rule is that, in order to

overthrow the presumption of legitimacy, it
must be shown beyond reasonable
doubt that there was no access as could
have enabled the husband to be the father of
the child. Sexual intercourse is to be
presumed where personal access is not
disproved, unless such presumption is
rebutted by evidence to the contrary; where
sexual intercourse is presumed or proved,
the husband must be taken to be the father
of the child (Tolentino, citing Madden,
Persons and Domestic Relations, pp. 340341).

Impotence refers to the inability of the male

organ to copulation, to perform its proper
function (Bouvier's Law Dictionary 514). As
defined in the celebrated case of Menciano
vs. San Jose (89 Phil. 63), impotency is the
physical inability to have sexual intercourse.
It is not synonymous with sterility. Sterility
refers to the inability to procreate, whereas,
impotence refers to the physical inability to
perform the act of sexual intercourse. In
respect of the impotency of the husband of
the mother of a child, to overcome the
presumption of legitimacy on conception or
birth in wedlock or to show illegitimacy, it
has been held or recognized that the
evidence or proof must be clear or
satisfactory: clear, satisfactory and
convincing, irresistible or positive (S.C.
Tarleton vs. Thompson, 118 S.E. 421, 125 SC
182, cited in 10 C.J.S. 50).

The separation between the spouses must be

such as to make sexual access impossible.
This may take place when they reside in
different countries or provinces, and they
have never been together during the period
of conception (Estate of Benito Marcelo, 60
Phil. 442). Or, the husband may be in prison
during the period of conception, unless it
appears that sexual union took place through
corrupt violation of or allowed by prison
regulations (1 Manresa 492-500).
The illness of the husband must be of such a
nature as to exclude the possibility of his
having sexual intercourse with his wife; such
as, when because of a injury, he was placed
in a plaster cast, and it was inconceivable to
have sexual intercourse without the most
severe pain (Tolentino, citing Commissioner
vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p.
515); or the illness produced temporary or
permanent impotence, making copulation
impossible (Tolentino, citing Q. Bonet 352).
Thus, in the case of Andal vs. Macaraig (89
Phil. 165), this Court ruled that just because
tuberculosis is advanced in a man does not
necessarily mean that he is incapable of
sexual intercourse. There are cases where
persons suffering from tuberculosis can do
the carnal act even in the most crucial stage
of health because then they seemed to be
more inclined to sexual intercourse. The fact
that the wife had illicit intercourse with a
man other than her husband during the
initial period, does not preclude cohabitation
between said husband and wife.
Significantly American courts have made
definite pronouncements or rulings on the
issues under consideration. The policy of the
law is to confer legitimacy upon children
born in wedlock when access of the husband
at the time of conception was not impossible
(N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160
Misc. 830) and there is the presumption that
a child so born is the child of the husband
and is legitimate even though the wife was
guilty of infidelity during the possible period
of conception (N.Y. Dieterich vs. Dieterich,
278 N.Y. S. 645, Misc. 714; both cited in 10
C.J.S., pp. 18,19 & 20).
So firm was this presumption originally that it
cannot be rebutted unless the husband was
incapable of procreation or was absent
beyond the four seas, that is, absent from
the realm, during the whole period of the
wife's pregnancy (10 C.J.S. p. 20).

The presumption of legitimacy of children

born during wedlock obtains,
notwithstanding the husband and wife
voluntarily separate and live apart, unless
the contrary is shown (Ala. Franks vs. State,
161 So. 549, 26 . App. 430) and this includes
children born after the separation [10 C.J.S.
pp. 23 & 24; emphasis supplied].
It must be stressed that Article 256 of the
Civil Code which provides that the child is
presumed legitimate although the mother
may have declared against its legitimacy or
may have been sentenced as an adulteress
has been adopted for two solid reasons. First,
in a fit of anger, or to arouse jealousy in the
husband, the wife may have made this
declaration (Power vs. State, 95 N.E., 660).
Second, the article is established as a
guaranty in favor of the children whose
condition should not be under the mercy of
the passions of their parents. The husband
whose honor if offended, that is, being aware
of his wife's adultery, may obtain from the
guilty spouse by means of coercion, a
confession against the legitimacy of the child
which may really be only a confession of her
guilt. Or the wife, out of vengeance and
spite, may declare the as not her husband's
although the statement be false. But there is
another reason which is more powerful,
demanding the exclusion of proof of
confession or adultery, and it is, that at the
moment of conception, it cannot be
determined when a woman cohabits during
the same period with two men, by whom the
child was begotten, it being possible that it
be the husband himself (Manresa, Vol. I, pp.
503-504).
Hence, in general, good morals and public
policy require that a mother should not be
permitted to assert the illegitimacy of a child
born in wedlock in order to obtain some
benefit for herself (N.Y. Flint vs. Pierce, 136
N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be
declared illegitimate to suit the whims and
purposes of either parent, nor Merely upon
evidence that no actual act of sexual
intercourse occurred between husband and
wife at or about the time the wife became
pregnant. Thus, where the husband denies
having any intercourse with his wife, the
child was still presumed legitimate (Lynn vs.
State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it
must be emphasized that adultery on the
part of the wife, in itself, cannot destroy the
presumption of legitimacy of her child,
because it is still possible that the child is
that of the husband (Tolentino, citing 1 Vera
170; 4 Borja 23-24).

It has, therefore, been held that the

admission of the wife's testimony on the
point would be unseemly and scandalous,
not only because it reveals immoral conduct
on her part, but also because of the effect it
may have on the child, who is in no fault, but
who nevertheless must be the chief sufferer
thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in
wedlock, evidence of the infidelity or
adultery of the wife and mother is not
admissible to show illegitimacy, if there is no
proof of the husband's impotency or nonaccess to his wife (Iowa Craven vs.
Selway, 246 N.W. 821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that
only the husband can contest the legitimacy
of a child born to his wife. He is the one
directly confronted with the scandal and
ridicule which the infidelity of his wife
produces; and he should decide whether to
conceal that infidelity or expose it, in view of
the moral or economic interest involved
(Tolentino, citing Bevilaqua, Familia, p. 314).
The right to repudiate or contest the
legitimacy of a child born in wedlock belongs
only to the alleged father, who is the
husband of the mother and can be exercised
only by him or his heirs, within a fixed time,
and in certain cases, and only in a direct suit
brought for the purpose (La Ducasse vs.
Ducasse, 45 So. 565, 120 La. 731; Saloy's
Succ. 10 So. 872, 44 La. Ann., cited in 10
C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a
child because maternity is never uncertain;
she can only contest the Identity of the child
(La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D.
192).
Formerly, declarations of a wife that her
husband was not the father of a child in
wedlock were held to be admissible in
evidence; but the general rule now is that
they are inadmissible to bastardize the child,
regardless of statutory provisions obviating
incompetency on the ground of interest, or
the fact that the conception was antenuptial.
The rule is said to be founded in decency,
morality and public policy (Wallace vs.
Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A.
[N.S.] 544,126 Am. St. Rep. 253,15 Ann. Cas.
761, Am. Jur. 26).
From the foregoing, particularly the
testimony of respondent and her witnesses,
this Court has every reason to believe that
Crispin Anahaw was not actually separated
from Elizabeth Mejias; that he was a very
potent man, having had four children with his
wife; that even if he and were even
separately (which the latter failed to prove

anyway) and assuming, for argument's sake,

that they were really separated, there was
the possibility of physical access to each
other considering their proximity to each
other and considering further that
respondent still visited and recuperated in
her mother's house in Samal where her
spouse resided with her children. Moreover,
Crispin Anahaw did not have any serious
illness or any illness whatsoever which would
have rendered him incapable of having
sexual act with his wife. No substantial
evidence whatsoever was brought out to
negate the aforestated facts.
Crispin Anahaw served as a refuge after
respondent's reckless and immoral pursuits
or a "buffer" after her flings. And she
deliberately did not include nor present her
husband in this case because she could not
risk her scheme. She had to be certain that
such scheme to bastardize her own son for
her selfish motives would not be thwarted.
This Court finds no other recourse except to
deny respondent's claim to declare her son
Rolando the illegitimate child of petitioner.
From all indications, respondent has paraded
herself as a woman of highly questionable
character. A married woman who, on first
meeting, rides with a total stranger who is
married towards nightfall, sleeps in his house
in the presence of his children, then lives
with him after their initial sexual contact
the atmosphere for which she herself
provided is patently immoral and
hedonistic. Although her husband was a very
potent man, she readily indulged in an
instant illicit relationship with a married man
she had never known before.
Respondent had shown total lack of or
genuine concern for her child (Rolando) for,
even after birth, she left him in the care of
a yaya for several months. This is not the
normal instinct and behavior of a mother
who has the safety and welfare of her child
foremost in her mind. The filing of this case
itself shows how she is capable of sacrificing
the psycho-social future (reputation) of the
child in exchange for some monetary
consideration. This is blatant shamelessness.
It also appears that her claim against
petitioner is a disguised attempt to evade
the responsibility and consequence of her
reckless behavior at the expense of her
husband, her illicit lover and above all her
own son. For this Court to allow, much less
consent to, the bastardization of
respondent's son would give rise to serious
and far-reaching consequences on society.
This Court will not tolerate scheming married
women who would indulge in illicit affairs
with married men and then exploit the
children born during such immoral relations
by using them to collect from such moneyed

paramours. This would be the form of

wrecking the stability of two families. This
would be a severe assault on morality.
And as between the paternity by the
husband and the paternity by the paramour,
all the circumstances being equal, the law is
inclined to follow the former; hence, the child
is thus given the benefit of legitimacy.
Finally, Article 220 of the Civil Code
reinforces the aforesaid principle when it
provides thus:

property during marriage, the

authority of parents over their
children, and the validity of
defense for any member of the
family in case of unlawful
aggression.
WHEREFORE, THE DECISION OF THE COURT
OF APPEALS DATED JUNE 2, 1978, AND ITS
RESOLUTION DATED NOVEMBER 6, 1978 ARE
HEREBY REVERSED AND SET ASIDE. COSTS
AGAINST PRIVATE RESPONDENT.
SO ORDERED.

Art. 220. In case of doubt, an

presumptions favor the
solidarity of the family. Thus,
every of law or facts leans
toward the validity of marriage,
the indissolubility of the
marriage bonds, the legitimacy
of children the community of

Teehankee (Chairman), Fernandez, Guerrero,

De Castro and Melencio-Herrera, JJ., concur.

The Lawphil Project - Arellano Law

Foundation