G.R. No.

181089 October 22, 2012

MERLINDA CIPRIANO MONTAÑES, Complainant,

vs.
LOURDES TAJOLOSA CIPRIANO, Respondent.

DECISION

PERALTA, J.:

For our resolution is a petition for review on certiorari which seeks to annul the Order 1 dated September 24, 2007
of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, issued in Criminal Case No. 4990-SPL which
dismissed the lnformation for Bigamy filed against respondent Lourdes Tajolosa Cipriano. Also assailed is the RTC
Resolution2 dated January 2, 2008 denying the motion for reconsideration.

On April 8, 1976, respondent married Socrates Flores (Socrates) in Lezo, Aklan. 3 On January 24, 1983, during the
subsistence of the said marriage, respondent married Silverio V. Cipriano (Silverio) in San Pedro, Laguna. 4 In 2001,
respondent filed with the RTC of Muntinlupa, Branch

256, a Petition for the Annulment of her marriage with Socrates on the ground of the latter’s psychological
incapacity as defined under Article 36 of the Family Code, which was docketed as Civil Case No. 01-204. On July 18,
2003, the RTC of Muntinlupa, Branch 256, rendered an Amended Decision 5 declaring the marriage of respondent
with Socrates null and void. Said decision became final and executory on October 13, 2003.6

On May 14, 2004, petitioner Merlinda Cipriano Montañez, Silverio’s daughter from the first marriage, filed with the
Municipal Trial Court of San Pedro, Laguna, a Complaint7 for Bigamy against respondent, which was docketed as
Criminal Case No. 41972. Attached to the complaint was an Affidavit8 (Malayang Sinumpaang Salaysay) dated
August 23, 2004, thumb-marked and signed by Silverio,9 which alleged, among others, that respondent failed to
reveal to Silverio that she was still married to Socrates. On November 17, 2004, an Information 10 for Bigamy was
filed against respondent with the RTC of San Pedro, Laguna, Branch 31. The case was docketed as Criminal Case
No. 4990-SPL. The Information reads:

That on or about January 24, 1983, in the Municipality of San Pedro, Province of Laguna, Philippines, and within
the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully and feloniously
contract a second or subsequent marriage with one SILVERIO CIPRIANO VINALON while her first marriage with
SOCRATES FLORES has not been judicially dissolved by proper judicial authorities. 11

On July 24, 2007 and before her arraignment, respondent, through counsel, filed a Motion to Quash Information
(and Dismissal of the Criminal Complaint)12 alleging that her marriage with Socrates had already been declared void
ab initio in 2003, thus, there was no more marriage to speak of prior to her marriage to Silverio on January 24,
1983; that the basic element of the crime of bigamy, i.e., two valid marriages, is therefore wanting. She also
claimed that since the second marriage was held in 1983, the crime of bigamy had already prescribed. The
prosecution filed its Comment13 arguing that the crime of bigamy had already been consummated when
respondent filed her petition for declaration of nullity; that the law punishes the act of contracting a second
marriage which appears to be valid, while the first marriage is still subsisting and has not yet been annulled or
declared void by the court.

In its Order14 dated August 3, 2007, the RTC denied the motion. It found respondent's argument that with the
declaration of nullity of her first marriage, there was no more first marriage to speak of and thus the element of
two valid marriages in bigamy was absent, to have been laid to rest by our ruling in Mercado v. Tan 15 where we
held:

1
In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of
nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after
complainant had filed a letter-complaint charging him with bigamy. For contracting a second marriage while the
first is still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat,
the crime had already been consummated by then. x x x16

As to respondent's claim that the action had already prescribed, the RTC found that while the second marriage
indeed took place in 1983, or more than the 15-year prescriptive period for the crime of bigamy, the commission
of the crime was only discovered on November 17, 2004, which should be the reckoning period, hence,
prescription has not yet set in.

Respondent filed a Motion for Reconsideration17 claiming that the Mercado ruling was not applicable, since
respondent contracted her first marriage in 1976, i.e., before the Family Code; that the petition for annulment was
granted and became final before the criminal complaint for bigamy was filed; and, that Article 40 of the Family
Code cannot be given any retroactive effect because this will impair her right to remarry without need of securing
a declaration of nullity of a completely void prior marriage.

On September 24, 2007, the RTC issued its assailed Order,18 the dispositive portion of which reads:

Wherefore, the Order of August 3, 2007 is reconsidered and set aside. Let a new one be entered quashing the
information. Accordingly, let the instant case be DISMISSED.

SO ORDERED.

In so ruling, the RTC said that at the time the accused had contracted a second marriage on January 24, 1983, i.e.,
before the effectivity of the Family Code, the existing law did not require a judicial declaration of absolute nullity
as a condition precedent to contracting a subsequent marriage; that jurisprudence before the Family Code was
ambivalent on the issue of the need of prior judicial declaration of absolute nullity of the first marriage. The RTC
found that both marriages of respondent took place before the effectivity of the Family Code, thus, considering the
unsettled state of jurisprudence on the need for a prior declaration of absolute nullity of marriage before
commencing a second marriage and the principle that laws should be interpreted liberally in favor of the accused,
it declared that the absence of a judicial declaration of nullity should not prejudice the accused whose second
marriage was declared once and for all valid with the annulment of her first marriage by the RTC of Muntinlupa
City in 2003.

Dissatisfied, a Motion for Reconsideration was filed by the prosecution, but opposed by respondent. In a
Resolution dated January 2, 2008, the RTC denied the same ruling, among others, that the judicial declaration of
nullity of respondent's marriage is tantamount to a mere declaration or confirmation that said marriage never
existed at all, and for this reason, her act in contracting a second marriage cannot be considered criminal.

Aggrieved, petitioner directly filed the present petition with us raising the following issues:

I. Whether the judicial nullity of a first marriage prior to the enactment of the Family Code and the pronouncement
in Wiegel vs. Sempio-Diy on the ground of psychological incapacity is a valid defense for a charge of bigamy for
entering into a second marriage prior to the enactment of the Family Code and the pronouncement in Wiegel vs.
Sempio-Diy?

II. Whether the trial court erred in stating that the jurisprudence prior to the enactment of the Family Code and
the pronouncement in Wiegel vs. Sempio-Diy regarding the necessity of securing a declaration of nullity of the first

2
marriage before entering a second marriage ambivalent, such that a person was allowed to enter a subsequent
marriage without the annulment of the first without incurring criminal liability. 19

Preliminarily, we note that the instant petition assailing the RTC's dismissal of the Information for bigamy was filed
by private complainant and not by the Office of the Solicitor General (OSG) which should represent the
government in all judicial proceedings filed before us.20

Notwithstanding, we will give due course to this petition as we had done in the past. In Antone v. Beronilla, 21 the
offended party (private complainant) questioned before the Court of Appeals (CA) the RTC's dismissal of the
Information for bigamy filed against her husband, and the CA dismissed the petition on the ground, among others,
that the petition should have been filed in behalf of the People of the Philippines by the OSG, being its statutory
counsel in all appealed criminal cases. In a petition filed with us, we said that we had given due course to a number
of actions even when the respective interests of the government were not properly represented by the OSG and
said:

In Labaro v. Panay, this Court dealt with a similar defect in the following manner:

It must, however, be stressed that if the public prosecution is aggrieved by any order ruling of the trial judge in a
criminal case, the OSG, and not the prosecutor, must be the one to question the order or ruling before us. x x x

Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the Philippines,
we opted not to dismiss the petition on this technical ground. Instead, we required the OSG to comment on the
petition, as we had done before in some cases. In light of its Comment, we rule that the OSG has ratified and
adopted as its own the instant petition for the People of the Philippines. (Emphasis supplied) 22

Considering that we also required the OSG to file a Comment on the petition, which it did, praying that the petition
be granted in effect, such Comment had ratified the petition filed with us.

As to the merit of the petition, the issue for resolution is whether or not the RTC erred in quashing the Information
for bigamy filed against respondent.

Article 349 of the Revised Penal Code defines and penalizes bigamy as follow:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of the crime of bigamy are: (a) the offender has been legally married; (b) the marriage has not been
legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code; (c) that he contracts a second or subsequent marriage; and (d) the second or
subsequent marriage has all the essential requisites for validity. The felony is consummated on the celebration of
the second marriage or subsequent marriage.23 It is essential in the prosecution for bigamy that the alleged second
marriage, having all the essential requirements, would be valid were it not for the subsistence of the first
marriage.24

In this case, it appears that when respondent contracted a second marriage with Silverio in 1983, her first marriage
with Socrates celebrated in 1976 was still subsisting as the same had not yet been annulled or declared void by a
competent authority. Thus, all the elements of bigamy were alleged in the Information. In her Motion to Quash the
Information, she alleged, among others, that:

xxxx

3
 2. The records of this case would bear out that accused's marriage with said Socrates Flores was declared
void ab initio on 14 April 2003 by Branch 256 of the Regional Trial Court of Muntinlupa City. The said
decision was never appealed, and became final and executory shortly thereafter.

3. In other words, before the filing of the Information in this case, her marriage with Mr. Flores had
already been declared void from the beginning.

4. There was therefore no marriage prior to 24 January 1983 to speak of. In other words, there was only
one marriage.

5. The basic element of the crime of bigamy, that is, two valid marriages, is therefore wanting. 25

Clearly, the annulment of respondent's first marriage on the ground of psychological incapacity was declared only
in 2003. The question now is whether the declaration of nullity of respondent's first marriage justifies the dismissal
of the Information for bigamy filed against her.

We rule in the negative.

In Mercado v. Tan,26 we ruled that the subsequent judicial declaration of the nullity of the first marriage was
immaterial, because prior to the declaration of nullity, the crime of bigamy had already been consummated. And
by contracting a second marriage while the first was still subsisting, the accused committed the acts punishable
under Article 349 of the Revised Penal Code.

In Abunado v. People,27 we held that what is required for the charge of bigamy to prosper is that the first marriage
be subsisting at the time the second marriage is contracted. 28 Even if the accused eventually obtained a declaration
that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before
the first marriage was annulled.29

In Tenebro v. CA,30 we declared that although the judicial declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between
the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these
effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be
considered legitimate. There is, therefore, a recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability
for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow
individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of
futurity and commitment.31

And in Jarillo v. People,32 applying the foregoing jurisprudence, we affirmed the accused's conviction for bigamy,
ruling that the moment the accused contracted a second marriage without the previous one having been judicially
declared null and void, the crime of bigamy was already consummated because at the time of the celebration of
the second marriage, the accused’s first marriage which had not yet been declared null and void by a court of
competent jurisdiction was deemed valid and subsisting.

Here, at the time respondent contracted the second marriage, the first marriage was still subsisting as it had not
yet been legally dissolved. As ruled in the above-mentioned jurisprudence, the subsequent judicial declaration of
nullity of the first marriage would not change the fact that she contracted the second marriage during the
subsistence of the first marriage. Thus, respondent was properly charged of the crime of bigamy, since the
essential elements of the offense charged were sufficiently alleged.

4
Respondent claims that Tenebro v. CA33 is not applicable, since the declaration of nullity of the previous marriage
came after the filing of the Information, unlike in this case where the declaration was rendered before the
information was filed. We do not agree. What makes a person criminally liable for bigamy is when he contracts a
second or subsequent marriage during the subsistence of a valid marriage.

Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted
to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as
void, and so long as there is no such declaration the presumption is that the marriage exists. 34 Therefore, he who
contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.35

Anent respondent's contention in her Comment that since her two marriages were contracted prior to the
effectivity of the Family Code, Article 40 of the Family Code cannot be given retroactive effect because this will
impair her right to remarry without need of securing a judicial declaration of nullity of a completely void marriage.

We are not persuaded.

In Jarillo v. People,36 where the accused, in her motion for reconsideration, argued that since her marriages were
entered into before the effectivity of the Family Code, then the applicable law is Section 29 of the Marriage Law
(Act 3613),37 instead of Article 40 of the Family Code, which requires a final judgment declaring the previous
marriage void before a person may contract a subsequent marriage. We did not find the argument meritorious and
said:

As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the declaration that Article 40, which is a
rule of procedure, should be applied retroactively because Article 256 of the Family Code itself provides that said
"Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights." The Court
went on to explain, thus:

The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach
to, nor arise from, procedural laws.1âwphi1

In Marbella-Bobis v. Bobis, the Court pointed out the danger of not enforcing the provisions of Article 40 of the
Family Code, to wit:

In the case at bar, respondent’s clear intent is to obtain a judicial declaration nullity of his first marriage and
thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and
eat it too. Otherwise, all that an adventurous bigamist has to do is disregard Article 40 of the Family Code, contract
a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the
subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even
enter into a marriage license and thereafter contract a subsequent marriage without obtaining a declaration of
nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the
provision on bigamy.38

WHEREFORE, considering the foregoing, the petition is GRANTED. The Order dated September 24, 2007 and the
Resolution dated January 2, 2008 of the Regional Trial Court of San Pedro, Laguna, Branch 31, issued in Criminal
Case No. 4990-SPL, are hereby SET ASIDE. Criminal Case No. 4990-SPL is ordered REMANDED to the trial court for
further proceedings.

SO ORDERED.

5
G.R. No. 145226 February 06, 2004

LUCIO MORIGO y CACHO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of the Court of Appeals
in CA-G.R. CR No. 20700, which affirmed the judgment2 dated August 5, 1996 of the Regional Trial Court (RTC) of
Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty
beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision
correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this
petition is the resolution3 of the appellate court, dated September 25, 2000, denying Morigo’s motion for
reconsideration.

The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran
City, Province of Bohol, for a period of four (4) years (from 1974-1978).

After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.

In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former
replied and after an exchange of letters, they became sweethearts.

In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they
maintained constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both
agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at
Catagdaan, Pilar, Bohol.

On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against
appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.

On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago 4 at the Virgen sa Barangay
Parish, Tagbilaran City, Bohol.

6
 On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the
Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the
declaration of nullity of accused’s marriage with Lucia, on the ground that no marriage ceremony actually
took place.

On October 19, 1993, appellant was charged with Bigamy in an Information 5 filed by the City Prosecutor of
Tagbilaran [City], with the Regional Trial Court of Bohol.6

The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of
his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently
denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was
docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:

WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond
reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment
ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day
of Prision Mayor as maximum.

SO ORDERED.7

In convicting herein petitioner, the trial court discounted petitioner’s claim that his first marriage to Lucia was null
and void ab initio. Following Domingo v. Court of Appeals,8 the trial court ruled that want of a valid marriage
ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that
their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,9 which held that the court of a
country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the
purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a
divorce granted by said court is not entitled to recognition anywhere. Debunking Lucio’s defense of good faith in
contracting the second marriage, the trial court stressed that following People v. Bitdu,10 everyone is presumed to
know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt
him from the consequences thereof.

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial
court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since
no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and
executory.

On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.

SO ORDERED.11

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of
nullity of Lucio’s marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought

7
to be punished by Article 34912 of the Revised Penal Code is the act of contracting a second marriage before the
first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning
is not a valid defense in a bigamy case.

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not
be accorded validity in the Philippines, pursuant to Article 1513 of the Civil Code and given the fact that it is
contrary to public policy in this jurisdiction. Under Article 17 14 of the Civil Code, a declaration of public policy
cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate court’s decision, contending that the doctrine in Mendiola v.
People,15 allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a
basis for good faith.

On September 25, 2000, the appellate court denied the motion for lack of merit. 16 However, the denial was by a
split vote. The ponente of the appellate court’s original decision in CA-G.R. CR No. 20700, Justice Eugenio S.
Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first
marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the
nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never
married, he cannot be convicted beyond reasonable doubt of bigamy.

The present petition raises the following issues for our resolution:

A.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE]
PETITIONER’S LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.

B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU
(58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.

C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY
CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT. 17

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his
defense of good faith is valid.

The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the
Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person
intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to
a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the
Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete
defense. He stresses that there is a difference between the intent to commit the crime and the intent to
perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is
tantamount to an intent to commit bigamy.

8
For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a
convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,18 which held
that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 40 19 of
the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the
petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG
counters that petitioner’s contention that he was in good faith because he relied on the divorce decree of the
Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his
marriage to Lucia.

Before we delve into petitioner’s defense of good faith and lack of criminal intent, we must first determine
whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,20 we laid down the
elements of bigamy thus:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent
spouse has not been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.

Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the
RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and
further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.

SO ORDERED.21

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a
solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the
presence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with
Articles 322 and 423 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, "This
simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of
the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the
first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes
of the law, never married."24 The records show that no appeal was taken from the decision of the trial court in Civil
Case No. 6020, hence, the decision had long become final and executory.

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of.
Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married "from
the beginning." The contract of marriage is null; it bears no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with
Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of
bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the instant charge.

9
The present case is analogous to, but must be distinguished from Mercado v. Tan.25 In the latter case, the judicial
declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated.
We held therein that:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is
guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as "void." 26

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first
before a judge where a marriage certificate was duly issued and then again six months later before a priest in
religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab
initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a
marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such
act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might
be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent
marriage.

The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that
we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now
moot and academic.

WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of
Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000,
denying herein petitioner’s motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y
Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral
certainty.

SO ORDERED.

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