Problem: Arra Wen is charged with serious physical injuries against her husband of five

years. She admitted seriously wounding her husband when she caught him in the act of
having sexual intercourse with his lover, a man. Her husband, Czar Uman did not deny his
wife's statements but claimed that he and his wife were already separated in fact for three
years to the day of the incident. Medical report reveal that Arra Wen is a victim of repeated
spousal abuse - both physical and psychological. Meanwhile, Czar Uman files a custody case
against Arra Wen. When he asks the court to deny custody to his wife the custody of their
three-year old daughter claiming that Arra Wen is not fit to have custody of their daughter
because of her criminal propensity.

Rule, Analysis and Conclusions per Issue (You can rephrase issues)
1. Is Arra Wen liable for physical injuries?
Rule: See Revised Penal Code, Art. 247: Death and Physical Injuries inflicted under
exceptional circumstances. Art. 247 exempts the offender from any criminal liability.
Application: Art. 247, RPC requires the existence of the following elements:
a. A legally married person or parent surprises his spouse or his daughter (under 18
yrs of age and living with him), in the act of committing sexual intercourse with
another person. (complied)
- Arra Wen and Czar Uman are married (not specifically stated if legally
married, but state policy favors the presumption of a valid marriage);
- Arra Wen caught him in the act of having sexual intercourse with his lover, a
man. (The law merely states another person, regardless of/ no distinction as
to the gender)
- Czar Uman did not deny his wife's statements.
b. He or she kills any or both of them, or inflicts upon any or both of them any serious
physical injury in the act or immediately thereafter. (complied)
- Arra Wen admitted having seriously injured her husband when she caught
him in the act of having sexual intercourse.
c. He has not promoted or facilitated the prostitution of his wife or daughter, or that he
or she has not consented to the infidelity of the other spouse.
- no factual statement/evidence lead us to believe that Arra Wen has consented
to the infidelity of her husband.
Conclusion: With all the elements present and complied with, Art. 247 of RPC is
applicable in this case. Arra Wen should not be held liable for having seriously injured
Czar Uman and criminal charges against her should be dropped/dismissed.
2. Does separation in fact for three years affect Arra Wens liability, if any?

Czars counter-argument is that he and his wife were already separated in fact for three
years to the day of the incident.
Rule: I couldnt remember exact provision sa family code. Please see provision and
annotation on legal separation. I think Sta. Maria explained it well sa iyang book.
Application: Separation in fact is different from legal separation. Even so, either in legal
or factual separation, there is no severance of marital ties. Hence, marriage still subsists.
Art. 247 merely requires that the offender and victim be legally married. It does not
require that they be living together (except if daughter was the victim, and is still minor).
Conclusion: Czars counter-argument is untenable. Art. 247 is still applicable and Arra
Wen should be exonerated from any charges/criminal liability.

3. Who gets custody of the child?

Rule:See Art. 213 Family Code. Paragraph 2 provides that NO child under 7 years of age
shall be separated from the mother, unless the court finds compelling reasons to order
otherwise.
Application: Their daughter is only three years old. Hence, unless there is a compelling
reason not to grant her custody, the general rule that no child under 7 yrs of age shall be
separated from the mother, stays. Moreover, in determining custodial and parental
authority, the court uses the best interest of the child standard. Czar is unfit for the
following reasons:
a. Czar is violent; has physically and psychologically abused Arra Wen as evidenced by
a medical certificate;
b. Czar is homosexual (homosexuality is not generally determinative of a parents fitness
to rear a child but you can argue na it will/might adversely affect their daughters
understanding and will likely confuse her of societal roles and norms.

Czars counter-argument that Arra Wen is unfit to take custody of their child due to her
criminal propensity does not hold water. (Go back to Art. 247, RPC) No criminal liability
arose from the serious injuries that she inflicted on him as Art. 247 expressly exempts her
from any.
Conclusion: Since their daughter is just three years old, pursuant to Art. 213 of the Family
Code, Arra Wen should have custody of their child.