G.R. No.

L-30977 January 31, 1972 CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for petitioner-appellant. D. G. Eufemio for respondent-appellee.

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:

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, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage,

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 pre-supposes 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 bedand-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 subjectmatter 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.

G.R. No. L-11766

October 25, 1960

EN BANC

SOCORRO MATUBIS, plaintiff-appellant, vs. ZOILO PRAXEDES, defendant-appellee. Luis N. de Leon for appellant. Lucio La. Margallo for appellee. PAREDES, J.: Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes. The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who left the conjugal home. During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were established:. Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder reproduced.. . . . (a) That both of us relinquish our right over the other as legal husband and wife. (b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received thereafter, nor I the husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May 30, 1944 to the present when we made our verbal separation into writing. In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and Asuncion deported themselves as husband and wife and were generally reputed as such in the community. After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating: While this legal ground exist, the suit must be dismissed for two reasons, viz: Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason action is barred. Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear from the following stipulations: (b) That both of us is free to get any mate and live with as husband and wife without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (Exh. B). This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation.

The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have considered that the period to bring the action has already elapsed and that there was consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon which the lower court based its judgment of dismissal. Article 102 of the new Civil Code provides: An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from after the date when cause occurred. The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she came to know the ground (concubinage) for the legal separation in January, 1955. She instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press this matter in her brief. The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living separately which he claims to be legal, and the second part that which becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's contention, because it is contrary to the evidence.

Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the law on the matter. The same is hereby affirmed, with costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

[G.R. No. L-9667, July 31, 1956] LUIS MA. ARANETA, PETITIONER, VS. HONORABLE HERMOGENES CONCEPCION, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH VI AND EMMA BENITEZ ARANETA, RESPONDENTS. DECISION
LABRADOR, J.: The main action was brought by petitioner against his wife, one of the respondent herein, for legal separation on the ground of adultery. After the issues were joined defendant therein filed an omnibus petition to secure custody of their three minor children, a monthly support of P5,000 for herself and said children, and the return of her passport, to enjoin plaintiff from ordering his hirelings from harassing and molesting her, and to have plaintiff therein pay for the fees of her attorney in the action. The petition is supported by her affidavit. Plaintiff opposed the petition, denying the misconduct imputed to him and alleging that defendant had abandoned the children; alleging that conjugal properties were worth only P80,000, not one million pesos as alleged by defendant; denying the taking of her passport or the supposed vexation, and contesting her right to attorney's fees. Plaintiff prayed that as the petition for custody and support cannot be determined without evidence, the parties be required to submit their respective evidence. He also contended that defendant is not entitled to the custody of the children as she had abandoned them and had committed adultery, that by her conduct she had become unfit to educate her children, being unstable in her emotions and unable to give the children the love, respect and care of a true mother and without means to educate them. As to the claim for support, plaintiff claims that there are no conjugal assets and she is not entitled to support because of her infidelity and that she was able to support herself. Affidavits and documents were submitted both in support and against the omnibus petition. The respondent judge resolved the omnibus petition, granting the custody of the children to defendant and a monthly allowance of P2,300 for support for her and the children, P300 for a house and P2,000 as attorney's fees. Upon refusal of the judge to reconsider the order, petitioner filed the present petition for certiorari against said order and for mandamus to compel the respondent judge to require the parties to submit evidence before deciding the omnibus petition. We granted a writ of preliminary injunction against the order.

The main reason given by the judge, for refusing plaintiff's request that evidence be allowd to be introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as follows: "ART. 103. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." Interpreting the spirit and policy of the provision the trial judge says: "This provision of the code is mandatory. This case cannot be tried within the period of six months from the filing of the complaint The court understands that the introduction of any evidence, be it on the merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts efforts at preserving the family and the home from utter ruin. Interpreting the intent of said article, the court understands that every step it should take within the period of six months above stated should be taken toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not impossible. In this case the court should act as if nothing yet had happened. The children must be given for custody to him or her who by family custom and tradition is the custodian of the children. The court should ignore that defendant had committed any act of adultery or the plaintiff, any act of cruelty to his wife. The status quo of the family must be restored as much as possible. In this country, unlike perhaps in any other country of the globe, a family or a home is a petite corporation. The father is the administrator who earns the family funds, dictates rules in the. home for all to follow, and protects all members of his family. The mother keeps home, keeps children in her company and custody, and keeps the treasure of that family. In a typical Filipino family, the wife prepares home budget and makes little investment without the knowledge of her husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino community. The court therefore, in taking action on petition No. 1 should be guided by the above considerations." (pp. 116117, Record on Appeal.) It may be noted that since more than six months have elapsed since the filing of the petition the question offered may not be allowed. It is, however, believed that the reasons for granting the preliminary injunction should be given that the scope of the article cited may be explained. It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient,

necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstances. (Article 105, Civil Code.) The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank in justice may be caused. Take the case at bar, for instance. Why should the court ignore the claim of adultery by defendant in the face of express allegations under oath to that effect, supported by circumstantial evidence consisting of letter the authenticity of which cannot be denied. And why assume that the children are in the custody of the wife, and that the latter is living at the conjugal dwelling, when ,it is precisely alleged in the petition and in the affidavits, that she has abandoned the conjugal abode? Evidence of all these disputed allegations should be allowed that the discretion of the court as to the custody and alimony pendente lite may be lawfully exercised. The rule is that all the provisions of the law even if apparently contradictory, should be allowed to stand and given effect by reconciling them if necessary. "The practical inquiry in litigation is usually to determine what a particular provision, clause or word means. To answer it one must proceed as he would with any other compositionconstrue it with reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intend. Consequently, each part of section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed." (Southerland, Statutory Construction section 4703, pp. 336337.). Thus the determination of the custody and alimony should be given effect and force provided it does not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause of the separation, like the actual custody of the children, the means conducive to their welfare and convenience during the pendency of the case, these should be allowed that the court may determine which is best for their custody. The writ prayed for is hereby issued and the respondent judge or whosoever takes his place is ordered to proceed on the question of custody and support pendente lite in accordance with this opinion. The court's order fixing the alimony and requiring payment is reversed. Without costs,.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes A., Bautista Angelo, Concepcion, Reyes, J. B. L., and Endencia, JJ., concur.

G.R. No. L-13553

February 23, 1960

EN BANC

JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent. Joselito J. Coloma for petitioner. BENGZON, J.: Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription. We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith: ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame. Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined

the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat. According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately. "On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation." The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1 As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the actionipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.) Collusion in divorce or legal separation means the agreement. . . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.). In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was

not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taking place, according to the evidence. The defendant could not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.). We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband. Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered. Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.

G.R. No. L-34132

July 29, 1972

EN BANC

LUCY SOMOSA-RAMOS, petitioner, vs. THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN G. RAMOS, respondents. T. R. Reyes & Associates for petitioner. Soleto J. Erames for respondents. FERNANDO, J.:p The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted. The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further

manifested by him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is the order complained of in this petition for certiorari. Respondents were required to answer according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a manifestation from parties in the case submitting the matter without further arguments. After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period. 1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court." 2 There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such six-month period. An administrator may even be appointed for the management of the property of the conjugal partnership. The absolute limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by him. What was held by this Court in Araneta v. Concepcion, 3 thus possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstance ... The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused." 4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six months certainly had

elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction. WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against respondent Clemente G. Ramos. Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Separate Opinions Reyes, J.B.L.,. J., concurring: Concurs, specially in view of the ruling in De la Via vs. Villareal, 41 Phil. 13, 24.

G.R. No. L-53880

March 17, 1994

3RD DIVISION

and that reconciliation between her and Pacete was impossible since he evidently preferred to continue living with Clarita. The defendants were each served with summons on 15 November 1979. They filed a motion for an extension of twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed a second motion for an extension of another thirty (30) days from 20 December 1979. On 07 January 1980, the lower court granted the motion but only for twenty (20) days to be counted from 20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February 1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted from the expiration of the 30-day period previously sought" within which to file an answer. The following day, or on 06 February 1980, the court denied this last motion on the ground that it was "filed after the original period given . . . as first extension had expired." 1 The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith granted. The plaintiff was then directed to present her evidence. 2 The court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22 February 1980. On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus WHEREFORE, order is hereby issued ordering: 1. The issuance of a Decree of Legal Separation of the marriage between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L. Pacete, in accordance with the Philippine laws and with consequences, as provided for by our laws; 2. That the following properties are hereby declared as the conjugal properties of the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half and half, to wit: 1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in the barrio of Langcong, Municipality of Matanog (previously of Parang), province

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and EDUARDO C. PACETE, petitioners, vs. HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE, respondents. Juan G. Sibug and Rodolfo B. Quiachon for petitioners. Julio F. Andres, Jr. for private respondent.

VITUG, J.: The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion. On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation of property. In her complaint, she averred that she was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of property either in his name and Clarita or in the names of his children with Clarita and other "dummies;" that Pacete ignored overtures for an amicable settlement;

of Maguindanao (previously of Cotabato province) with an area of 45,265 square meters registered in the name of Enrico Pacete, Filipino, of legal age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff. 2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together with all its improvements, which parcel of land, as shown by Exhibits "K-1" was acquired by way of absolute deed of sale executed by Amrosio Mondog on January 14, 1965. 3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as shown by Exhibit "R", the same was registered in the name of Enrico Pacete and the same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato. 4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S", and registered in the name of Enrico Pacete. 5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is covered by Tax Declaration No. 803 (74) and registered in the name of Enrico Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on September 24, 1962, as shown by Exhibit "Q-1". 6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato.

7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, and also covered by Tax Declaration No. 8607 (74) both in the name of the defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda Bernardino, as shown by Exhibit "M-1". 8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete and which parcel of land he acquired last September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1". 9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1". 10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745 (74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1". 3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering the registration of the same in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.

4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan, Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete. 5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of 12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be registered as their joint property, including the 50 hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del Sur. 6. Ordering the following motor vehicles to be the joint properties of the conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz: a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561; Chassis No. 83920393, and Type, Mcarrier; b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier; c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188; Chassis No. HOCC-GPW-116188-C; Type, Jeep; d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No. HOCC-GPW1161188-G; Type, Stake;

e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No. KB222-22044; Type, Stake; and f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake. 7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00 which is the share of the plaintiff in the unaccounted income of the ricemill and corn sheller for three years from 1971 to 1973. 8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary equipment of 30% of whether the plaintiff has recovered as attorney's fees; 9. Declaring the subsequent marriage between defendant Enrico L. Pacete and Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4

Hence, the instant special civil action of certiorari. Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also pointed out by private respondents, the proper remedy of petitioners should have instead been either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule, however, is not inflexible; a petition forcertiorari is allowed when the default order is improperly declared, or even when it is properly declared, where grave abuse of discretion attended such declaration. 6 In these exceptional instances, the special civil action ofcertiorari to declare the nullity of a judgment by default is available. 7 In the case at bench, the default order unquestionably is not legally sanctioned. The Civil Code provides: Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or

not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance, reproduced in Article 60 of the Family Code. 9 Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law. InBrown v. Yambao, 10 the Court has observed: The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation must "in no case be tried before six months shall have elapsed since the filing of the petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward getting the parties to reconcile. The significance of the above substantive provisions of the law is further underscored by the inclusion of the following provision in Rule 18 of the Rules of Court: Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to

investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are impelled by no less than the State's interest in the marriage relation and its avowed intention not to leave the matter within the exclusive domain and the vagaries of the parties to alone dictate. It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirements aforequoted. WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur.

G.R. No. L-13982

July 31, 1920

EN BANC

DIEGO DE LA VIA, petitioner, vs. ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents. Del Rosario and Del Rosario and W. F. Mueller for petitioner. J. Lopez Vito for respondents. JOHNSON, J.: This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a) That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Via, the petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that all the proceedings theretofore had in said court were null and void. It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Via, alleging: (1) That she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of Guijulgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant had acquired property, real and personal, the value of which was about P300,000 and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since established her habitual

residence; and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite in the sum of P400 per month. Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises. The defendant Diego de la Via, petitioner herein, opposed the said motion for a preliminary injunction, and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, "nor over the person of the defendant." After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the plaintiff. Thereafter and on April 27, 1918, the defendant, Diego de la Via filed the present petition for certiorari in this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had exceeded his power and authority in issuing said preliminary injunction. The questions arising out of the foregoing facts are as follows: 1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage? 2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action? I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved. This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.) The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a few of them, as follows: Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and

Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.) The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.) The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.) Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.) Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.) The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367;

Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.) In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. The court said: It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.) Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says: Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with article 63. (Scaevola, Civil Code, p. 354.) Manresa, commenting upon the same article (art. 40) says: The domicile of married women not legally separated from their husband shall be that of the latter. This principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards

rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their own independent domicile, which should be considered in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.) If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty. Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife." Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.) It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband, during the existence of the marriage, where the husband has given cause for divorce. II. We come now to the second question whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner. Section 164 of Act No. 190 provides: A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it: 1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission

or continuance of the acts complained of either for a limited period or perpetually; 2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff; 3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual. The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in restraining the power and authority which the law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers was violated. We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to protect the interests of the wife, that the husband's power of administration be curtailed, during the pendency of the action, insofar as alienating or encumbering the conjugal property is concerned. In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and

this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership. The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances whatever. This court denied that petition, determining the power of the Courts of First Instance to issue preliminary injunction, as follows: The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable. Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances

of each particular case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon which our judicial is modeled. The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure. We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action. It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action. Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered. Mapa, C.J., Carson, Araullo, Malcolm, Avancea, Moir and Villamor, JJ., concur.

G.R. No. L-33352

December 20, 1974

FIRST DIVISION

TEODORO E. LERMA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents. Salonga, Ordoez, Yap, Parlade & Associates for petitioner. Villareal, Matic & Associates for private respondent.

Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969, which she amended in an order dated February 15, 1970 to the following effect: (1) the respondent was declared entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly support was reduced from P2,250.00 to P1,820.00. On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary injunction to stop Judge Luciano from enforcing said orders. The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an opportunity to present evidence before the lower court in support of his defense against the application for support pendente lite. The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed to present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for review. On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order, alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court the assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing out that for the previous three years the respondent did not ask for the enforcement of the orders and her belated move came only "after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge Luciano issued an order dated January 19, 1974, ordering the petitioner

MAKALINTAL, C.J.:p Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari and prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our resolution dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or restraining order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City (hereinafter referred to as the lower court) ordering the petitioner to pay supportpendente lite to Concepcion Diaz, the private respondent herein. Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of the Court of First Instance of Rizal). On November 18, 1969 the respondent filed with the lower court, presided by Judge Leonor Ines Luciano, a complaint 1 against the petitioner for legal separation and/or separation of properties, custody of their children 2 and support, with an urgent petition for support pendente lite for her and their youngest son, Gregory, who was then and until now is in her custody. The respondent's complaint for legal separation is based on two grounds: concubinage and attempt against her life. The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the adultery charge he had filed against the respondent.

to pay the respondent the awarded support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed orders, the present petition would be rendered moot and academic, to the prejudice of the petitioner. On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents and representatives. Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition, with a prayer for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated the grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property ...," such support is mandatory even if there be a showing that the wife is guilty of adultery. In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary injunction. On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We issued another resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining order previously issued until further orders. On the same day the respondent filed her opposition to the motion for reconsideration and later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however, of oral argument the Court allowed them to file memoranda. The petition assails the resolution of the respondent Court of Appeals on two main grounds: I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING SUPPORT PENDENTE LITE TO RESPONDENT

CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF DISCRETION. II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE MAKE IT MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO HEREIN RESPONDENT. The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting support pendente lite. As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review), the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof, which partly provides: The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the questions involved. ... The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the disputed orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have a bearing on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims he was deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's application for support pendente lite. The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of that his wife had committed adultery has become academic. The petitioner, in his motion filed February 28, 1974 for reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that on September 26, 1972 the court of First Instance of Rizal decided the adultery case of the respondent and found her and her co-accused, Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not

been denied by the respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with Teodoro Ramirez for which she was later on convicted, the said respondent gave birth prematurely to a baby boy, who however died the same day. When the respondent entered the hospital for delivery, she registered under the assumed name of "Gloria Santos," and when the child died had it falsely identified in the death certificate as the child of one Rosario R. Salita, a close friend of hers. For the falsification thus committed Rosario E. Salita was criminally charged and convicted, although the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28 also states, without denial on the part of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by the name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of adultery have been filed against them before the Fiscal of Manila. Photographs of the two, showing them in intimate pose, were submitted to this Court. Their veracity has not been disputed. The legal issue posed by the foregoing facts is whether adultery is a good defense against the respondent's claim for support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife against the husband for support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v. Olayvar, 98 Phil. 52. The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the Civil Code, which reads: ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property.

We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of such right in certain cases. In the second place, the said article contemplates the pendency of a court action and, inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra, which requires, among other things, when support pendente lite is applied for, that the court determine provisionally "the probable outcome of the case." Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage ... (and) where both spouses are offenders, a legal separation cannot be claimed by either of them ..." In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit for legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no matter how groundless. The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease "when the

recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for support pendente lite. What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only in the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of supportpendente lite. WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for legal separation between the parties. No pronouncement as to costs. Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur. Esguerra, J., took no part.

G.R. No. L-48183

November 10, 1941

EN BANC

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.)

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 co-accused, 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

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. 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.

G.R. No. L-10033

December 28, 1956

EN BANC

BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee. Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee.

FELIX, J.: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there. As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiffhusband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred: (a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiffappellant; and (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority. The Civil Code provides: ART. 97. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code; or (2) An attempt by one spouse against the life of the other. ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her

husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon. But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point: In the hearing of the case, the plaintiff further testified as follows: Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court why you want to separate from your wife? A. I came to know that my wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.) Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12, t.s.n.)
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Q. What happened next? A. I persuaded her to come along with me. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.) Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one night. (p. 12. t.s.n.) Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.) Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? A. Yes, sir. (p. 19. t.s.n.) Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.) Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.) The New Civil Code of the Philippines, in its Art. 97, says: A petition for legal separation may be filed: (1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code. and in its Art. 100 it says:
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defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong." In Tiffany's Domestic and Family Relations, section 107 says: Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied. It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein). In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). If there had been cohabitation, to what extent must it be to constitute condonation? Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d). A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion

serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court). Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

G.R. No. L-10699

October 18, 1957

EN BANC

Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code, providing: ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same Code: ART. 102 An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after date when such cause occurred. since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945. Brown appeared to this Court, assigning the following errors: The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who defaulted. The court erred in declaring that there was condonation of or consent to the adultery. The court erred in dismissing the plaintiff's complaint. Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.". The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by

WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA YAMBAO, defendant-appellee. Jimenez B. Buendia for appellant. Assistant City Fiscal Rafel A. Jose for appellee. REYES, J.B.L., J.: On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be just and equitable. Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time, despite service of summons; and directed the City Fiscal or his representatives to investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State. (Rec. App. p. 9). As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground that, while the wife's adultery was established,

preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses. The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. The court below also found, and correctly held that the appellant's action was already barred, because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and conclusion. It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner

and prescription of the action), it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss the second assignment of error. The third assignment of error being a mere consequence of the others must necessarily fail with them. The decision appealed from is affirmed, with costs against appellant. So ordered. Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.

[G.R. No. L-9325, May 30, 1956] ROSARIO MATUTE, PETITIONER, VS. HON. HIGINIO B. MACADAEG, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH X, AND ARMANDO MEDEL, RESPONDENTS. DECISION
CONCEPCION, J.:

In an action for legal separation brought by Armando Medel against Rosario Matute, upon the ground of adultery committed with his brother and her brother-in-law, Ernesto Medelwhich action was docketed as civil case No. 14190 of the Court of First Instance of Manila decision was, on November 6, 1952 rendered by the latter, finding Rosario guilty of the charge against her, decreeing said legal separation, and awarding to Armando the custody of their four (4) minor children, Florencia, Manuel, Carmelita and Benito, all surnamed Medel, then 12, 10, 8 and 4 years of age, respectively. Thereafter, Armando went to the United States, leaving the children in the City of Davao under the care of his sister Pilar Medel, in whose house Rosario subsequently lived in order to be with her offspring. Armando returned to the Philippines late in 1954. At the close of the then current school year, during which the children were enrolled in a school in Davao, or in March, 1955, they joined their father in Cebu. With his permission, Rosario brought the children to Manila in April, 1955, to attend the funeral of her father. Armando alleges that he consented thereto on condition that she would return the children to him within two (2) weeks. However, Rosario did not do so. Instead, on June 10, 1955, she filed, in said civil case No. 14190, a motion the prayer of which is of the following tenor: "Wherefore, movant respectfully prays this Honorable Court, after due hearing: "(1) to issue an order awarding the custody of the above-named children to the herein movant, their mother, in deference to the preference expressed by the children (Sec. 6, Rule 100, Rules of Court); and "(2) to order Armando Medel, father of the said minor children, to support said children by paying their school fees and giving them a reasonable allowance both items in an amount not less than P200 a month."

Said motion was based upon the ground that the childrenthree (3) of whom, namely, Florencia, Manuel and Carmelita, were then 16, 14 and 12 years of age, respectivelydo not want to go back to their father, because he "is living with a woman other than" their mother. Armando opposed this motion and countered with a petition to declare and punish Rosario for contempt of court, in view of her failure and alleged refusal to restore the custody of their children to him. After due hearing the Court of First Instance of Manila, presided over by Hon. Higinio B. Macadaeg, Judge, issued an order, dated June 29, 1955, absolving Rosario from the charge of contempt of court, she having secured Armando's consent before bringing the children to Manila, but denying her motion for their custody and ordering her to deliver them to Armando within twenty-four (24) hours from notice. The dispositive part of said order reads: "In view of the foregoing, motion for the custody of the minor children, Florencia, Manuel, Carmelita, and Benito, all surnamed Medel, is hereby denied. Rosario Matute is hereby ordered to deliver to Armando Medel the persons of the said minor children, within twenty-four (24) hours from receipt of copy of this Order. "Let copies of this Order be served immediately by the Sheriff of this Court, not only on the lawyers appearing in this case, but also on the parties themselves." Thereupon, Rosario instituted, against Armando and Judge Maeadaeg, the present action for certiorari and prohibition with preliminary injunction, upon the ground that said order of June 29, 1955, had been issued with grave abuse of discretion, and that there is no other plain, adequate and speedy remedy in the ordinary course of law. The prayer in her petition, is as follows; "Wherefore, petitioner respectfully prays this Honorable Court to issue a writ of preliminary injunction upon petitioner's filing a bond in such sum as this Honorable Court may fix, ordering respondents, their attorneys, agents and other persons acting by and under their orders to cease and desist from enforcing in any way the order of the respondent Court dated June 29, 1955, and after hearing, to annul the said Order and to award the custody of the children to your petitioner. "Petitioner likewise prays for such other or further relief as may be just and equitable, without costs." Upon the filing of the petition, we issued the writ of preliminary injunction therein prayed for, without bond. Briefly stated, petitioner herein maintains that the children should be under her custody, because: (1)

she is their legitimate mother and they wish to stay with her, not their father Armando Medel; (2) three (3) of the children are over ten (10) years of age, and, hence, their aforementioned wish must, pursuant to Rule 100, section 6, of the Rules of Court, be heeded, unless "the parent so chosen be unfit to take charge" of them "by reason of moral depravity, habitual drunkenness, incapacity or poverty"; (3) the act of infidelity of which she had been found guilty in the decision of November 6, 1952, does not involve "moral depravity"; (4) in any event, it is a thing of the past, not a present reality; (5) respondent Armando Medel is now unfit to have the children under his care, for he is living maritally with a woman by the name of Paz Jesusa Concepcion; and (6) although he had married the latter, after securing in the United States a decree of divorce dissolving his marriage with petitioner herein, said decree is null and void and, accordingly, he is guilty of bigamy. In the present action, we do not deem it necessary to pass upon the merits of such pretense. The case before us is one of certiorari and prohibition, governed by sections 1 and 2 of Rule 67 of. the Rules of Court, reading: "Section 1. Petition for certiorari.When any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board, or officer as the law requires, with costs. "Sec. 2. Petition for prohibition.When the proceedings of any tribunal corporation board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein, with costs." Pursuant to these provisions, neither the writ of certiorari nor that of prohibition lies unless the act complained of has been performed "without or in excess of" jurisdiction "or with grave abuse of discretion". There is no question but that respondent Judge had jurisdiction to pass upon the issue raised by petitioner's motion of June 10, 1955, for custody of the

children, and the petition of respondent Medel, dated June 22,, 1955, to declare petitioner guilty of contempt of court, to wit: whether said custody should be retained by respondent Medel, as adjudged in the decision of November 6, 1952, or should be given to petitioner herein. Which ever alternative taken by respondent Judge would not vitiate his choice as being "without or in excess" of jurisdiction. Whatever mistakes, if any, he may have committed in the appraisal of the situationon which we do not express our viewin determining the best solution to said issue or which one of the litigants is best qualified or least disqualified to take charge of the children, would, at best, constitute "merely errors of judgment." They are not "errors of jurisdiction", but errors in the exercise of the jurisdiction which the lower court admittedly had. Such errors do not affect the legality or validity of the order complained of. They may be reviewed by appeal, not by writ of certiorari or prohibition. (Comments on the Rules of Court, by Moran, Vol. II, pp. 167 and 168). Neither does the aforementioned order of June 29, 1955, involve a grave abuse of discretion for it merely enforces the award made in the decision of November 6, 1952, which is admittedly final and executory. It is true that, insofar as it refers to the custody of the minor children, said decision is never final, in the sense that it is subject to review at any time that the Court may deem it for the best interest of said minors. It is no less true, however, that, unless and until reviewed and modified, said award must stand. No such modification having been made, at yet, respondent Judge had, not only the authority; but, also, the duty to execute and implement said award. Furthermore, by virtue of said decision of November 6, 1952, respondent had, admittedly, the custody of said minors. Petitioner merely obtained his permission to bring them to Manila, for the purpose of attending the funeral of their maternal grandfather, which took place in April, 1955. Thus, petitioner obtained and has the physical possession of the minors in a precarious manner. She holds it in the name, on behalf and by authority of respondent Medel, whose agent she, in effect, is. He may, therefore, demand their return at any time, and she is bound to comply immediately with such demand. She cannot even question his authority to make it, although she is free to seek a review of the order or decision awarding the custody of the minors to him, and to ask that they be placed under her charge. Again, it is conceded that children over ten (10) years of age, whose parents are divorced or living separately, may choose which parent they prefer to live with, unless the parent chosen is unfit to take charge of their care by reason of "moral depravity, habitual drunkenness, in capacity or

poverty" (Rule 100, section 6, Rules of Court). Without deciding whether the adultery committed by herein petitioner with her own brother-in-law involves moral depravity, it is clear to our mind that the affirmative assumption implicit in the order complained of cannot be characterized as an "abuse of discretion", much less a "grave" one. Lastly; said order further declares: * * * The facts remains that defendant-movant is without means of livelihood and, according to her own admission, she lives on the charily of her brothers. She has no home of her own to offer to her children, but only she would shelter them under the roof of her brothers." and the substantial accuracy of this statement is not contested. We are not prepared to hold, that a grave abuse of discretion was committed when the lower court impliedly deduced, from these circumstances, that "poverty", among other causes, rendered petitioner unfit to take charge of her children or made it unwise to place them under her care. Wherefore, without prejudice to such appropriate action as petitioner may deem fit to take for the purpose of securing a review of the order of respondent Judge of June 29, 1955, or a modification of the award made in the decision of November 6, 1952, relative to the custody of the children, or both, the petition is denied and the case dismissed. The writ of preliminary injunction heretofore issued is hereby dissolved, with costs against the petitioner. It is so ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, Reyes, J. B. L., and Endeneia, JJ., concur.

G.R. No. L-18008

October 30, 1962

EN BANC

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. 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. 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.

G.R. No. L-49542 September 12, 1980

1ST DIVISION

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:

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 pre-trial conference, issued a Pre-trial Order formalizing certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). 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 (L-32797, 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? 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. 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. 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). 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. 340-341). 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). 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 non-access 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: 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 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. Teehankee (Chairman), Fernandez, Guerrero, De Castro and MelencioHerrera, JJ., concur.