G.R. No.

L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN
YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE,
RODOLFO SY, and HONORABLE COURT OF
APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai
Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful
wife of Sy Kiat whom he married on January 19, 1931 in China;
(b) the other oppositors are the legitimate children of the
deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest
among them and is competent, willing and desirous to become
the administratrix of the estate of Sy Kiat [Record on Appeal, pp.
12-13; Rollo, p. 107.] After hearing, the probate court, finding
among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI
decision, pp. 12-27; Rollo, pp. 49-64;]

CORTES, J.:
Sy Kiat, a Chinese national. died on January 17, 1977 in
Caloocan City where he was then residing, leaving behind real
and personal properties here in the Philippines worth
P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe
and Rodolfo Sy filed a petition for the grant of letters of
administration docketed as Special Proceedings Case No. C-699
of the then Court of First Instance of Rizal Branch XXXIII,
Caloocan City. In said petition they alleged among others that (a)
they are the children of the deceased with Asuncion Gillego; (b) to
their knowledge Sy Mat died intestate; (c) they do not recognize
Sy Kiat's marriage to Yao Kee nor the filiation of her children to
him; and, (d) they nominate Aida Sy-Gonzales for appointment as
administratrix of the intestate estate of the deceased [Record on
Appeal, pp. 4-9; Rollo, p. 107.]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun
Yen are the legitimate children of Yao Kee with Sy
Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;]
and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-
Bernabe and Rodolfo Sy are the acknowledged
illegitimate offsprings of Sy Kiat with Asuncion
Gillego [CFI decision, pp. 27-28; Rollo, pp. 64-
65.]
held if favor of the oppositors (petitioners herein) and appointed
Sze Sook Wah as the administratrix of the intestate estate of the
deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying
that of the probate court, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of
the lower Court is hereby MODIFIED and SET
ASIDE and a new judgment rendered as follows:
 (1) Declaring petitioners Aida Sy-Gonzales,
Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy
acknowledged natural children of the deceased
Sy Kiat with Asuncion Gillego, an unmarried
woman with whom he lived as husband and wife
without benefit of marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai
Chu and Sze Chun Yen, the acknowledged
natural children of the deceased Sy Kiat with his
Chinese wife Yao Kee, also known as Yui Yip,
since the legality of the alleged marriage of Sy
Mat to Yao Kee in China had not been proven to
be valid to the laws of the Chinese People's
Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat
on December 7, 1976 in favor of Tomas Sy
(Exhibit "G-1", English translation of Exhibit "G")
of the Avenue Tractor and Diesel Parts Supply to
be valid and accordingly, said property should be
excluded from the estate of the deceased Sy Kiat;
and
(4) Affirming the appointment by the lower court of
Sze Sook Wah as judicial administratrix of the
estate of the deceased. [CA decision, pp. 11-12;
Rollo, pp. 36- 37.]
From said decision both parties moved for partial reconsideration,
which was however denied by respondent court. They thus
interposed their respective appeals to this Court.
Private respondents filed a petition with this Court docketed as
G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita
Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze
Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning
paragraphs (3) and (4) of the dispositive portion of the Court of
Appeals' decision. The Supreme Court however resolved to deny
the petition and the motion for reconsideration. Thus on March 8,
1982 entry of judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs (1)
and (2) of the dispositive portion of the decision of the Court of
Appeals. This petition was initially denied by the Supreme Court
on June 22, 1981. Upon motion of the petitioners the Court in a
resolution dated September 16, 1981 reconsidered the denial and
decided to give due course to this petition. Herein petitioners
assign the following as errors:
I. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT
HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS
GRAVELY ERRED IN DECLARING AIDA SY-
GONZALES, MANUEL SY, TERESITA SY-
BERNABE AND RODOLFO SY AS NATURAL
CHILDREN OF SY KIAT WITH ASUNCION
GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in
accordance with Chinese law and custom was conclusively
proven. To buttress this argument they rely on the following
testimonial and documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as
follows:
Yao Kee testified that she was married to Sy Kiat
on January 19, 1931 in Fookien, China; that she
does not have a marriage certificate because the
practice during that time was for elders to agree
upon the betrothal of their children, and in her
case, her elder brother was the one who
contracted or entered into [an] agreement with the
parents of her husband; that the agreement was
that she and Sy Mat would be married, the
wedding date was set, and invitations were sent
out; that the said agreement was complied with;
that she has five children with Sy Kiat, but two of
them died; that those who are alive are Sze Sook
Wah, Sze Lai Cho, and Sze Chun Yen, the eldest
being Sze Sook Wah who is already 38 years old;
that Sze Sook Wah was born on November 7,
1939; that she and her husband, Sy Mat, have
been living in FooKien, China before he went to
the Philippines on several occasions; that the
practice during the time of her marriage was a
written document [is exchanged] just between the
parents of the bride and the parents of the groom,
or any elder for that matter; that in China, the
custom is that there is a go- between, a sort of
marriage broker who is known to both parties who
would talk to the parents of the bride-to-be; that if
the parents of the bride-to-be agree to have the
groom-to-be their son in-law, then they agree on a
date as an engagement day; that on engagement
day, the parents of the groom would bring some
pieces of jewelry to the parents of the bride-to-be,
and then one month after that, a date would be
set for the wedding, which in her case, the
wedding date to Sy Kiat was set on January 19,
1931; that during the wedding the bridegroom
brings with him a couch (sic) where the bride
would ride and on that same day, the parents of
the bride would give the dowry for her daughter
and then the document would be signed by the
parties but there is no solemnizing officer as is
known in the Philippines; that during the wedding
day, the document is signed only by the parents of
the bridegroom as well as by the parents of the
bride; that the parties themselves do not sign the
document; that the bride would then be placed in
a carriage where she would be brought to the
town of the bridegroom and before departure the
bride would be covered with a sort of a veil; that
upon reaching the town of the bridegroom, the
bridegroom takes away the veil; that during her
wedding to Sy Kiat (according to said Chinese
custom), there were many persons present; that
after Sy Kiat opened the door of the carriage, two
old ladies helped her go down the carriage and
brought her inside the house of Sy Mat; that
during her wedding, Sy Chick, the eldest brother
of Sy Kiat, signed the document with her mother;
that as to the whereabouts of that document, she
and Sy Mat were married for 46 years already
and the document was left in China and she
doubt if that document can still be found now; that
it was left in the possession of Sy Kiat's family;
that right now, she does not know the
whereabouts of that document because of the
lapse of many years and because they left it in a
certain place and it was already eaten by the
termites; that after her wedding with Sy Kiat, they
lived immediately together as husband and wife,
and from then on, they lived together; that Sy Kiat
 went to the Philippines sometime in March or April
in the same year they were married; that she went
to the Philippines in 1970, and then came back to
China; that again she went back to the Philippines
and lived with Sy Mat as husband and wife; that
she begot her children with Sy Kiat during the
several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao
Kee who stated that he was among the many people who
attended the wedding of his sister with Sy Kiat and that no
marriage certificate is issued by the Chinese government, a
document signed by the parents or elders of the parties being
sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she
testified before the trial court to the effect that (a) Sy Mat was
married to Yao Kee according to Chinese custom; and, (b) Sy
Kiat's admission to her that he has a Chinese wife whom he
married according to Chinese custom [CFI decision, p. 17; Rollo,
p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in
Caloocan City on October 3, 1972 where the following entries are
found: "Marital statusMarried"; "If married give name of
spousesYao Kee"; "Address-China; "Date of marriage1931";
and "Place of marriageChina" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila
on January 12, 1968 where the following entries are likewise
found: "Civil statusMarried"; and, 'If married, state name and
address of spouseYao Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977
by the Embassy of the People's Republic of China to the effect
that "according to the information available at the Embassy Mr.
Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also
Chinese were married on January 19, 1931 in Fukien, the
People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between
Yao Kee and Sy Kiat. However, the same do not suffice to
establish the validity of said marriage in accordance with Chinese
law or custom.
Custom is defined as "a rule of conduct formed by repetition of
acts, uniformly observed (practiced) as a social rule, legally
binding and obligatory" [In the Matter of the Petition for Authority
to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon,
Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL
Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1,
p. 7.] The law requires that "a custom must be proved as a fact,
according to the rules of evidence" [Article 12, Civil Code.] On
this score the Court had occasion to state that "a local custom as
a source of right can not be considered by a court of justice
unless such custom is properly established by competent
evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395
(1907).] The same evidence, if not one of a higher degree, should
be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil
Code which states that:
Art. 71. All marriages performed outside the
Philippines in accordance with the laws in force in
the country where they were performed and valid
there as such, shall also be valid in this country,
except bigamous, Polygamous, or incestuous
 marriages, as determined by Philippine law.
(Emphasis supplied.) ***
Construing this provision of law the Court has held that to
establish a valid foreign marriage two things must be proven,
namely: (1) the existence of the foreign law as a question of fact;
and (2) the alleged foreign marriage by convincing evidence
[Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]
In proving a foreign law the procedure is provided in the Rules of
Court. With respect to an unwritten foreign law, Rule 130 section
45 states that:
SEC. 45. Unwritten law.The oral testimony of
witnesses, skilled therein, is admissible as
evidence of the unwritten law of a foreign country,
as are also printed and published books of reports
of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for
under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.An
official record or an entry therein, when admissible
for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is
not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which
the record is kept is in a foreign country, the
certificate may be made by a secretary of
embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept and
authenticated by the seal of his office.
The Court has interpreted section 25 to include competent
evidence like the testimony of a witness to prove the existence of
a written foreign law [Collector of Internal Revenue v. Fisher 110
Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works
v. Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent
evidence relative to the law and custom of China on marriage.
The testimonies of Yao and Gan Ching cannot be considered as
proof of China's law or custom on marriage not only because they
are
self-serving evidence, but more importantly, there is no showing
that they are competent to testify on the subject matter. For failure
to prove the foreign law or custom, and consequently, the validity
of the marriage in accordance with said law or custom, the
marriage between Yao Kee and Sy Kiat cannot be recognized in
this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling
they are not duty bound to prove the Chinese law on marriage as
judicial notice thereof had been taken by this Court in the case
of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this jurisdiction
is the principle that Philippine courts cannot take judicial notice of
foreign laws. They must be alleged and proved as any other fact
[Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915);
Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party
alleging the foreign marriage presented a witness, one Li Ung
Bieng, to prove that matrimonial letters mutually exchanged by
the contracting parties constitute the essential requisite for a
marriage to be considered duly solemnized in China. Based on
his testimony, which as found by the Court is uniformly
corroborated by authors on the subject of Chinese marriage, what
was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy
Joc Lieng v. Sy Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the Court
has indeed taken judicial notice of the law of China on marriage in
the aforecited case, petitioners however have not shown any
proof that the Chinese law or custom obtaining at the time the Sy
Joc Lieng marriage was celebrated in 1847 was still the law when
the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or
eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil.
633 (1916)] as being applicable to the instant case. They aver
that the judicial pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is competent evidence
to show the fact of marriage, holds true in this case.
The Memoracion case however is not applicable to the case at
bar as said case did not concern a foreign marriage and the issue
posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint
for adultery.
Accordingly, in the absence of proof of the Chinese law on
marriage, it should be presumed that it is the same as
ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.]
Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known
here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was
celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy
Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra.,
pp. 555-556.]
II. The second issue raised by petitioners concerns the status of
private respondents.
Respondent court found the following evidence of petitioners'
filiation:
(1) Sy Kiat's Master Card of Registered Alien
where the following are entered: "Children if any:
give number of childrenFour"; and, "NameAll
living in China" [Exhibit "SS-1";]
(2) the testimony of their mother Yao Kee who
stated that she had five children with Sy Kiat, only
three of whom are alive namely, Sze Sook Wah,
Sze Lai Chu and Sze Chin Yan [TSN, December
12, 1977, pp. 9-11;] and,
(3) an affidavit executed on March 22,1961 by Sy
Kiat for presentation to the Local Civil Registrar of
Manila to support Sze Sook Wah's application for
a marriage license, wherein Sy Kiat expressly
stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that
Sy Kiat told her he has three daughters with his Chinese wife, two
of whomSook Wah and Sze Kai Choshe knows, and one
adopted son [TSN, December 6,1977, pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao
Kee with Sy Mat according to the laws of China, they cannot be
accorded the status of legitimate children but only that of
acknowledged natural children. Petitioners are natural children, it
appearing that at the time of their conception Yao Kee and Sy
Kiat were not disqualified by any impediment to marry one
another [See Art. 269, Civil Code.] And they are acknowledged
children of the deceased because of Sy Kiat's recognition of Sze
Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy
Chun Yen who are her sisters of the full blood [See Art. 271, Civil
Code.]
Private respondents on the other hand are also the deceased's
acknowledged natural children with Asuncion Gillego, a Filipina
with whom he lived for twenty-five (25) years without the benefit
of marriage. They have in their favor their father's
acknowledgment, evidenced by a compromise agreement
entered into by and between their parents and approved by the
Court of First Instance on February 12, 1974 wherein Sy Kiat not
only acknowleged them as his children by Asuncion Gillego but
likewise made provisions for their support and future inheritance,
thus:
xxx xxx xxx
2. The parties also acknowledge that they are
common-law husband and wife and that out of
such relationship, which they have likewise
decided to definitely and finally terminate effective
immediately, they begot five children, namely:
Aida Sy, born on May 30, 1950; Manuel Sy, born
on July 1, 1953; Teresita Sy, born on January 28,
1955; Ricardo Sy now deceased, born on
December 14, 1956; and Rodolfo Sy, born on
May 7, 1958.
3. With respect to the AVENUE TRACTOR AND
DIESEL PARTS SUPPLY ... , the parties mutually
agree and covenant that
(a) The stocks and merchandize
and the furniture and
equipments ..., shall be divided
into two equal shares between,
and distributed to, Sy Kiat who
shall own
one-half of the total and the other
half to Asuncion Gillego who shall
transfer the same to their children,
namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy.
(b) the business name and
premises ... shall be retained by
Sy Kiat. However, it shall be his
obligation to give to
the aforenamed children an
amount of One Thousand Pesos
( Pl,000.00 ) monthly out of the
rental of the two doors of the same
building now occupied by Everett
Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the
existence of the
common-law husband-and-wife relationship
between the parties, of the real estates and
properties registered and/or appearing in the
name of Asuncion Gillego ... , the parties mutually
agree and covenant that the said real estates and
properties shall be transferred in equal shares to
their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy, but to be
administered by Asuncion Gillego during her
lifetime ... [Exhibit "D".] (Emphasis supplied.)
 xxx xxx xxx
This compromise agreement constitutes a statement before a
court of record by which a child may be voluntarily acknowledged
[See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy
Mat's marriage to Yao Kee and the paternity and filiation of the
parties should have been ventilated in the Juvenile and Domestic
Relations Court.
Specifically, petitioners rely on the following provision of Republic
Act No. 5502, entitled "An Act Revising Rep. Act No. 3278,
otherwise known as the Charter of the City of Caloocan', with
regard to the Juvenile and Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.
raised by petitioners.
xxx xxx xxx
The provisions of the Judiciary Act to the contrary
notwithstanding, the court shall have exclusive
original jurisdiction to hear and decide the
following cases:
xxx xxx xxx
(2) Cases involving custody, guardianship,
adoption, revocation of adoption, paternity and
acknowledgment;
(3) Annulment of marriages, relief from marital
obligations, legal separation of spouses, and
actions for support;
(4) Proceedings brought under the provisions of
title six and title seven, chapters one to three of
the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-
23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira [G.R.
No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise
known as the Judiciary Reorganization Act of 1980, the Juvenile
and Domestic Relations Courts were abolished. Their functions
and jurisdiction are now vested with the Regional Trial Courts
[See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo,
G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it
is no longer necessary to pass upon the issue of jurisdiction
Moreover, even without the exactment of Batas Pambansa Blg.
129 we find in Rep. Act No. 5502 sec. 91-A last paragraph that:
xxx xxx xxx
If any question involving any of the above matters
should arise as an incident in any case pending in
the ordinary court, said incident shall be
determined in the main case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L42615.
August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
 It is true that under the aforequoted section 1 of
Republic Act No. 4834 **** a case involving
paternity and acknowledgment may be ventilated as
an incident in the intestate or testate proceeding
(See Baluyot vs. Ines Luciano, L-42215, July 13,
1976). But that legal provision presupposes that
such an administration proceeding is pending or
existing and has not been terminated. [at pp. 313-
314.] (Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of
conflicting rulings on the same issue by the Court of First
Instance and the Juvenile and Domestic Relations Court" [Vda.
de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA
52, 63] but more importantly to prevent multiplicity of suits.
Accordingly, this Court finds no reversible error committed by
respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby
AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
G.R. No. 85140 May 17, 1990
TOMAS EUGENIO, SR., petitioner,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional
Trial Court, Branch 20, Cagayan de Oro City, DEPUTY
SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20,
Regional Trial Court, Cagayan de Oro City, and the Private
Respondents, the petitioners in Sp. Proc. No. 88-55, for
"Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ,
SANTOS and NARCISA VARGAS-BENTULAN, respondents.
G.R. No. 86470 May 17, 1990.
TOMAS EUGENIO, petitioner-appellant,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional
Trial Court, Branch 20, Cagayan de Oro City, CRISANTA
VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS,
NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS,
LUDIVINA VARGAS-DE LOS SANTOS and NARCISA
VARGAS-BENTULAN,respondents-appellees.
Maximo G. Rodriguez for petitioner.
Erasmo B. Damasing and Oliver Asis Improso for respondents.
PADILLA, J.:
On 5 October 1988, petitioner came to this Court with a petition
for certiorari and prohibition with application for restraining order
and/or injunction (docketed as G.R. No. 85140) seeking to enjoin
respondent Judge from proceeding with the Habeas Corpus case
(Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro
City), * the respondent Sheriff from enforcing and implementing
the writ and orders of the respondent Judge dated 28, 29, and 30
September 1988, and to declare said writ and orders as null and
void. In a resolution issued on 11 October 1988, this Court
required comment from the respondents on the petition but
denied the application for a temporary restraining order.
The records disclose the following:
Unaware of the death on 28 August 1988 of (Vitaliana Vargas
Vitaliana for brevity), her full blood brothers and sisters, herein
private respondents (Vargases', for brevity) filed on 27 September
1988, a petition for habeas corpus before the RTC of Misamis
Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana
was forcibly taken from her residence sometime in 1987 and
confined by herein petitioner in his palacial residence in Jasaan,
Misamis Oriental. Despite her desire to escape, Vitaliana was
allegedly deprived of her liberty without any legal authority. At the
time the petition was filed, it was alleged that Vitaliana was 25
years of age, single, and living with petitioner Tomas Eugenio.
The respondent court in an order dated 28 September 1988
issued the writ of habeas corpus, but the writ was returned
unsatisfied. Petitioner refused to surrender the body of Vitaliana
(who had died on 28 August 1988) to the respondent sheriff,
reasoning that a corpse cannot be the subject of habeas
corpus proceedings; besides, according to petitioner, he had
already obtained a burial permit from the Undersecretary of the
Department of Health, authorizing the burial at the palace
quadrangle of the Philippine Benevolent Christian Missionary, Inc.
(PBCM), a registered religious sect, of which he (petitioner) is the
Supreme President and Founder.
Petitioner also alleged that Vitaliana died of heart failure due to
toxemia of pregnancy in his residence on 28 August 1988. As her
common law husband, petitioner claimed legal custody of her
body. These reasons were incorporated in an explanation filed
before the respondent court. Two (2) orders dated 29 and 30
September 1988 were then issued by respondent court, directing
delivery of the deceased's body to a funeral parlor in Cagayan de
Oro City and its autopsy.
Petitioner (as respondent in the habeas corpus proceedings) filed
an urgent motion to dismiss the petition therein, claiming lack of
jurisdiction of the court over the nature of the action under sec.
1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of
Court. 1 A special proceeding for habeas corpus, petitioner argued, is
not applicable to a dead person but extends only to all cases of
illegal confinement or detention of a live person.
Before resolving the motion to dismiss, private respondents (as
petitioners below) were granted leave to amend their
petition. 2 Claiming to have knowledge of the death of Vitaliana only
on 28 September 1988 (or after the filing of thehabeas
corpus petition), private respondents (Vargases') alleged that
petitioner Tomas Eugenia who is not in any way related to Vitaliana
was wrongfully interfering with their (Vargases') duty to bury her.
Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases
contended that, as the next of kin in the Philippines, they are the
legal custodians of the dead body of their sister Vitaliana. An
exchange of pleadings followed. The motion to dismiss was finally
submitted for resolution on 21 October 1988.
In the absence of a restraining order from this Court, proceedings
continued before the respondent court; the body was placed in a
coffin, transferred to the Greenhills Memorial Homes in Cagayan
de Oro City, viewed by the presiding Judge of respondent court,
and examined by a duly authorized government pathologist. 4
Denying the motion to dismiss filed by petitioner, the court a
quo held in an order, 5 dated 17 November 1988, that:
It should be noted from the original petition, to the
first amended petition, up to the second amended
petition that the ultimate facts show that if the
person of Vitaliana Vargas turns out to be dead
then this Court is being prayed to declare the
petitioners as the persons entitled to the custody,
interment and/or burial of the body of said
deceased. The Court, considering the
circumstance that Vitaliana Vargas was already
dead on August 28, 1988 but only revealed to the
Court on September 29, 1988 by respondent's
counsel, did not lose jurisdiction over the nature
and subject matter of this case because it may
entertain this case thru the allegations in the body
of the petition on the determination as to who is
entitled to the custody of the dead body of the late
Vitaliana Vargas as well as the burial or interment
thereof, for the reason that under the provisions of
Sec. 19 of Batas Pambansa Blg. 129, which reads
as follows:
Sec. 19. Jurisdiction in civil cases. Regional
Trial Courts shall exercise exclusive original
jurisdiction:
(1) In all civil actions in which the
subject of the litigation is
incapable of pecuniary estimation;
xxx xxx xxx
(5) In all actions involving the
contract of marriage and marital
relations;
(6) In all cases not within the
exclusive jurisdiction of any court,
tribunal, person or body exercising
judicial or quasi-judicial functions:
xxx xxx xxx
it so provides that the Regional Trial Court has
exclusive original jurisdiction to try this case. The
authority to try the issue of custody and burial of a
dead person is within the lawful jurisdiction of this
Court because of Batas Pambansa Blg. 129 and
because of the allegations of the pleadings in this
case, which are enumerated in Sec. 19, pars. 1, 5
and 6 of Batas Pambansa Blg. 129.
Thereafter, the court a quo proceeded as in or civil cases and, in
due course, rendered a decision on 17 January 1989, 6 resolving
the main issue of whether or not said court acquired jurisdiction over
the case by treating it as an action for custody of a dead body,
without the petitioners having to file a separate civil action for such
relief, and without the Court first dismissing the original petition
for habeas corpus.
Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the
Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of Rule
135 of the Rules of Court 8 Articles 305 and 308 in relation to Article
294 of the Civil Code and Section 1104 of the Revised Administrative
Code, 9 the decision stated:
. . . . By a mere reading of the petition the court
observed that the allegations in the original
 petition as well as in the two amended petitions
show that Vitaliana Vargas has been restrained of
her liberty and if she were dead then relief was
prayed for the custody and burial of said dead
person. The amendments to the petition were but
elaborations but the ultimate facts remained the
same, hence, this court strongly finds that this
court has ample jurisdiction to entertain and sit on
this case as an action for custody and burial of the
dead body because the body of the petition
controls and is binding and since this case was
raffled to this court to the exclusion of all other
courts, it is the primary duty of this court to decide
and dispose of this case. . . . . 10
Satisfied with its jurisdiction, the respondent court then proceeded
to the matter of rightful custody over the dead body, (for purposes
of burial thereof). The order of preference to give support under
Art. 294 was used as the basis of the award. Since there was no
surviving spouse, ascendants or descendants, the brothers and
sisters were preferred over petitioner who was merely a common
law spouse, the latter being himself legally married to another
woman. 11
On 23 January 1989, a new petition for review with application for
a temporary restraining order and/or preliminary injunction was
filed with this Court (G.R. No. 86470). Raised therein were pure
questions of law, basically Identical to those raised in the earlier
petition (G.R. No. 85140); hence, the consolidation of both
cases.12 On 7 February 1989, petitioner filed an urgent motion for the
issuance of an injunction to maintain status quo pending appeal,
which this Court denied in a resolution dated 23 February 1989
stating that "Tomas Eugenio has so far failed to sufficiently establish
a clear legal right to the custody of the dead body of Vitaliana
Vargas, which now needs a decent burial." The petitions were then
submitted for decision without further pleadings.
Between the two (2) consolidated petitions, the following issues
are raised:
1. propriety of a habeas corpus proceeding under
Rule 102 of the Rules of Court to recover custody
of the dead body of a 25 year old female, single,
whose nearest surviving claimants are full blood
brothers and sisters and a common law husband.
2. jurisdiction of the RTC over such proceedings
and/or its authority to treat the action as one for
custody/possession/authority to bury the
deceased/recovery of the dead.
3. interpretation of par. 1, Art. 294
of the Civil Code (Art. 199 of the
new Family Code) which states:
Art. 294. The claim for support,
when proper and two or more
persons are obliged to give it, shall
be made in the following order:
(1) From the spouse;
xxx xxx xxx
Section 19, Batas Pambansa Blg. 129 provides for the exclusive
original jurisdiction of the Regional Trial Courts over civil cases.
Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas
corpus may be granted by a Court of First Instance (now
Regional Trial Court). It is an elementary rule of procedure that
what controls is not the caption of the complaint or petition; but
the allegations therein determine the nature of the action, and
even without the prayer for a specific remedy, proper relief may
nevertheless be granted by the court if the facts alleged in the
complaint and the evidence introduced so warrant. 13
When the petition for habeas corpus was filed before the court a
quo, it was not certain whether Vitaliana was dead or alive.
While habeas corpus is a writ of right, it will not issue as a matter
of course or as a mere perfimetory operation on the filing of the
petition. Judicial discretion is exercised in its issuance, and such
facts must be made to appear to the judge to whom the petition is
presented as, in his judgment, prima facie entitle the petitioner to
the writ. 14 While the court may refuse to grant the writ if the petition
is insufficient in form and substance, the writ should issue if the
petition complies with the legal requirements and its averments make
a prima facie case for relief. However, a judge who is asked to issue
a writ of habeas corpus need not be very critical in looking into the
petition for very clear grounds for the exercise of this jurisdiction. The
latter's power to make full inquiry into the cause of commitment or
detention will enable him to correct any errors or defects in the
petition. 15
In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the
dismissal of a habeas corpus petition filed by a brother to obtain
custody of a minor sister, stating:
All these circumstances notwithstanding, we
believe that the case should not have been
dismissed. The court below should not have
overlooked that by dismissing the petition, it was
virtually sanctioning the continuance of an
adulterous and scandalous relation between the
minor and her married employer, respondent
Benildo Nunez against all principles of law and
morality. It is no excuse that the minor has
expressed preference for remaining with said
respondent, because the minor may not chose to
continue an illicit relation that morals and law
repudiate.
xxx xxx xxx
The minor's welfare being the paramount
consideration, the court below should not allow
the technicality, that Teofilo Macazo was not
originally made a party, to stand in the way of its
giving the child full protection. Even in a habeas
corpus proceeding the court had power to award
temporary custody to the petitioner herein, or
some other suitable person, after summoning and
hearing all parties concerned. What matters is
that the immoral situation disclosed by the records
be not allowed to continue. 17
After the fact of Vitaliana's death was made known to the
petitioners in the habeas corpus proceedings,amendment of the
petition for habeas corpus, not dismissal, was proper to avoid
multiplicity of suits. Amendments to pleadings are generally
favored and should be liberally allowed in furtherance of justice in
order that every case may so far as possible be determined on its
real facts and in order to expedite the trial of cases or prevent
circuity of action and unnecessary expense, unless there are
circumstances such as inexcusable delay or the taking of the
adverse party by surprise or the like, which justify a refusal of
permission to amend. 18 As correctly alleged by respondents, the
writ of habeas corpus as a remedy became moot and academic due
to the death of the person allegedly restrained of liberty, but the issue
of custody remained, which the court a quo had to resolve.
Petitioner claims he is the spouse contemplated under Art. 294 of
the Civil Code, the term spouse used therein not being preceded
by any qualification; hence, in the absence of such qualification,
he is the rightful custodian of Vitaliana's body. Vitaliana's brothers
and sisters contend otherwise. Indeed, Philippine Law does not Custody of the dead body of Vitaliana was correctly awarded to
recognize common law marriages. A man and woman not legally her surviving brothers and sisters (the Vargases). Section 1103 of
married who cohabit for many years as husband and wife, who the Revised Administrative Code provides:
represent themselves to the public as husband and wife, and who
are reputed to be husband and wife in the community where they Sec. 1103. Persons charged with duty of burial.
live may be considered legally mauled in common law The immediate duty of burying the body of a
jurisdictions but not in the Philippines. 19 deceased person, regardless of the ultimate
liability for the expense thereof, shall devolve
While it is true that our laws do not just brush aside the fact that upon the persons hereinbelow specified:
such relationships are present in our society, and that they
produce a community of properties and interests which is xxx xxx xxx
governed by law, 20 authority exists in case law to the effect that
such form of co-ownership requires that the man and woman living (b) If the deceased was an
together must not in any way be incapacitated to contract unmarried man or woman, or a
marriage. 21 In any case, herein petitioner has a subsisting marriage child, and left any kin, the duty of
with another woman, a legal impediment which disqualified him from burial shall devolve upon the
even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the
nearest of kin of the deceased, if
Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code
they be adults and within the
(Support of Surviving Spouse and Children During Liquidation of
Philippines and in possession of
Inventoried Property) stated: "Be it noted however that with respect
sufficient means to defray the
to 'spouse', the same must be the legitimate 'spouse' (not common-
law spouses)." necessary expenses.

There is a view that under Article 332 of the Revised Penal Code, WHEREFORE, the decision appealed from is AFFIRMED. Both
the term "spouse" embraces common law relation for purposes of petitions are hereby DISMISSED. No Costs.
exemption from criminal liability in cases of theft, swindling and
malicious mischief committed or caused mutually by spouses. SO ORDERED.
The Penal Code article, it is said, makes no distinction between a
couple whose cohabitation is sanctioned by a sacrament or legal Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
tie and another who are husband and wife de facto. 23 But this view Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea and
cannot even apply to the facts of the case at bar. We hold that the Regalado, JJ., concur.
provisions of the Civil Code, unless expressly providing to the
contrary as in Article 144, when referring to a "spouse" contemplate Gancayco and Grino-Aquino, JJ., are on leave.
a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a
lawfully-wedded spouse to her; in fact, he was not legally capacitated
to marry her in her lifetime.