REPUBLIC ACT NO. 7192 REPUBLIC ACT NO.

7192 - AN ACT PROMOTING THE INTEGRATION OF WOMEN AS FULL AND EQUAL PARTNERS OF MEN IN DEVELOPMENT AND NATION BUILDING AND FOR OTHER PURPOSES

Section 1. Title. This Act shall be cited as the "Women in Development and Nation Building Act." Sec. 2. Declaration of Policy. The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men. The State shall provided women rights and opportunities equal to that of men. To attain the foregoing policy: (1) A substantial portion of official development assistance funds received from foreign governments and multilateral agencies and organizations shall be set aside and utilized by the agencies concerned to support programs and activities for women; (2) All government departments shall ensure that women benefit equally and participate directly in the development programs and projects of said department, specifically those funded under official foreign development assistance, to ensure the full participation and involvement of women in the development process; and (3) All government departments and agencies shall review and revise all their regulations, circulars, issuances and procedures to remove gender bias therein. Sec. 3. Responsible Agency. The National Economic and Development Authority (NEDA) shall primarily be responsible for ensuring the participation of women as recipients in foreign aid, grants and loans. It shall determine and recommend the amount to be allocated for the development activity involving women. Sec. 4. Mandate. The NEDA, with the assistance of the National Commission on the Role of Filipino Women, shall ensure that the different government departments, including its agencies and instrumentalities which, directly or indirectly, affect the participation of women in national development and their integration therein: (1) Formulate and prioritize rural or countryside development programs or projects, provide income and employment opportunities to women in the rural areas and thus, prevent their heavy migration from rural to urban or foreign countries; (2) Include an assessment of the extent to which their programs and/or projects integrate women in the development process and of the impact of said programs or projects on women, including their implications in enhancing the self-reliance of women in improving their income; (3) Ensure the active participation of women and women's organizations in the development programs and/or projects including their involvement in the planning, design, implementation, management, monitoring and evaluation thereof;

(4) Collect sex-disaggregated data and include such data in its program/project paper, proposal or strategy; (5) Ensure that programs and/or projects are designed so that the percentage of women who receive assistance is approximately proportionate to either their traditional participation in the targeted activities or their proportion of the population, whichever is higher. Otherwise, the following should be stated in the program/project paper, proposal or strategy; (a) (b) The obstacle in achieving the goal; The steps being taken to overcome those obstacles; and

(c) To the extent that steps are not being taken to overcome those obstacles, why they are not being taken. (6) Assist women in activities that are of critical significance to their self-reliance and development. Sec. 5. Equality in Capacity to Act. Women of legal age, regardless of civil status, shall have the capacity to act and enter into contracts which shall in every respect be equal to that of men under similar circumstances. In all contractual situations where married men have the capacity to act, married women shall have equal rights. To this end: (1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangement under the same conditions as men; (2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non-material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs; (3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and (4) Married women shall have rights equal to those of married men in applying for passport, secure visas and other travel documents, without need to secure the consent of their spouses. In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in every respect be equal to those of men under similar circumstances. Sec. 6. Equal Membership in Clubs. Women shall enjoy equal access to membership in all social, civic and recreational clubs, committees, associations and similar other organizations devoted to public purpose. They shall be entitled to the same rights and privileges accorded to their spouses if they belong to the same organization. Sec. 7. Admission to Military Schools. Any provision of the law to the contrary

notwithstanding, consistent with the needs of the services, women shall be accorded equal opportunities for appointment, admission, training, graduation and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police not later than the fourth academic year following the approval of this Act in accordance with the standards required for men except for those minimum essential adjustments required by physiological differences between sexes. Sec. 8. Voluntary Pag-IBIG, GSIS and SSS Coverage. Married persons who devote full time to managing the household and family affairs shall, upon the working spouse's consent, be entitled to voluntary Pag-IBIG (Pagtutulungan Ikaw, Bangko, Industriya at Gobyerno), Government Service Insurance System (GSIS) or Social Security System (SSS) coverage to the extent of one-half (1/2) of the salary and compensation of the working spouse. The contributions due thereon shall be deducted from the salary of the working spouse. The GSIS or the SSS, as the case may be, shall issue rules and regulations necessary to effectively implement the provisions of this section. Sec. 9. Implementing Rules. The NEDA, in consultation with the different government agencies concerned, shall issue rules and regulations as may be necessary for the effective implementation of Sections 2, 3 and 4, of this Act within six (6) months from its effectivity. SECTION 10. Compliance Report. Within six (6) months from the effectivity of this Act and every six (6) months thereafter, all government departments, including its agencies and instrumentalities, shall submit a report to Congress on their compliance with this Act. SECTION 11. Separability Clause. If for any reason any section or provision of this Act is declared unconstitutional or invalid, the other sections or provisions hereof which are not affected thereby shall continue to be in full force and effect. SECTION 12. Repealing Clause. The provisions of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and of Executive Order No. 209, otherwise known as the Family Code of the Philippines, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. SECTION 13. Effectivity Clause. The rights of women and all the provisions of this Act shall take effect immediately upon its publication in the Official Gazette or in two (2) newspapers of general circulation.

REPUBLIC ACT NO. 9048 March 22, 2001 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled : Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname No

entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Section 2. Definition of Terms As used in this Act, the following terms shall mean: (1) "City or Municipal civil registrar" refers to the head of the local civil registry office of the city or municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordance with the provisions of existing laws. (2) "Petitioner" refers to a natural person filing the petition and who has direct and personal interest in the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil register. (3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records:Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (4) "Civil Register" refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Registrar General. (5) "Civil registrar general" refers to the Administrator of the National Statistics Office which is the agency mandated to carry out and administer the provision of laws on civil registration. (6) "First name" refers to a name or nickname given to a person which may consist of one or more names in addition to the middle and last names. Section 3. Who May File the Petition and Where. Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once. Section 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or (3) The change will avoid confusion.

Section 5. Form and Contents of the Petition. The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by the law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed. (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and third copy to the petitioner. Section 6. Duties of the City or Municipal Civil Registrar or the Consul General. The city or municipal civil registrar or the consul general to whom the petition is presented shall examine the petition and its supporting documents. He shall post the petition in a conspicuous place provided for that purpose for ten (10) consecutive days after he finds the petition and its supporting documents sufficient in form and substance. The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision not later than five (5) working days after the completion of the posting and/or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within five (5) working days from the date of the decision. Section 7. Duties and Powers of the Civil Registrar General. The civil registrar general shall, within ten (10) working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds: (1) The error is not clerical or typographical; (2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or (3) The basis used in changing the first name or nickname of a person does not fall under Section 4. The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within the period prescribed herein, such decision shall become final and executory. Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

Section 8. Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee. Section 9. Penalty Clause. - A person who violates any of the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of not less than Ten thousand pesos (P10,000.00) but not more than One Hundred Thousand pesos (P100,000.00), or both, at the discretion of the court. In addition, if the offender is a government official or employee he shall suffer the penalties provided under civil service laws, rules and regulations. Section 10. Implementing Rules and Regulations. - The civil registrar general shall, in consultation with the Department of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator, the University of the Philippines Law Center and the Philippine Association of Civil Registrars, issue the necessary rules and regulations for the effective implementation of this Act not later than three (3) months from the effectivity of this law. Section 11. Retroactivity Clause. - This Act shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code and other laws. Section 12. Separability Clause. - If any portion or provision of this Act is declared void or unconstitutional, the remaining portions or provisions thereof shall not be affected by such declaration. Section 13. Repealing Clause - All laws, decrees, orders, rules and regulations, other issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 14. Effectivity Clause. - This Act shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation. Approved: March 22, 2001

G.R. No. 11263

November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendant-appellee. Eduardo Gutierrez Repide and Felix Socias for appellant. Sanz, Opisso and Luzuriaga for appellee. TRENT, J.: This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff declined to amend, the latter appealed.

It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant. The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as follows: That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands of the defendant and refused to perform any act other than legal and valid cohabitation; that the defendant, since that date had continually on other successive dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and different parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents. Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status of the law touching and governing the question under consideration. Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read: ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other. ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the wife's property.) ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence. Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty when the husband removes his residence to a foreign country. And articles 143 and 149 of the Civil Code are as follows: ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding article. 1. The consorts. xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed or by receiving and maintaining in his own home the person having the right to the same. Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife to live with her husband is not one of them. The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. But the husband who is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:. That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being considered wherein, either because this right would be opposed to the exercise of a preferential right or because of the existence of some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be understood as being thereby restricted. Whereas the only question discussed in the case which gave rise to this appeal was whether there was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in his own house the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural father simply claims his child for the purpose of thus better attending to her maintenance, no action having been taken by him toward providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise of the option in the present case, without prejudice to such decision as may be deemed proper with regard to the other questions previously cited in respect to which no opinion should be expressed at this time. The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a preexisting or preferential right in each of these cases which was opposed to the removal of the one entitled to support. It is true that in the first the person claiming the option was the natural father of the child and had married a woman other than the child's mother, and in the second the right to support had already been established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the option given by article 149 of the Civil Code may not be exercised in any and all cases. Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence, for support and the revocation of the powers heretofore granted in reference to the administration and disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon

the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said: Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other with support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the duties of spouses not legally separated, among which duties are those of their living together and mutually helping each other, as provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the management of his wife's property and of the product of the other property belonging to the conjugal partnership; and Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has established; and. Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally separated, it is their duty to live together and afford each other help and support; and for this reason, it cannot be held that the former has need of support from his wife so that he may live apart from her without the conjugal abode where it is his place to be, nor of her conferring power upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently, those of his own support without need of going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1 and 5 of the appeal. From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated voluntarily in accordance with an agreement previously made. At least there are strong indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will." If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not be controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily abandons such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband who had willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been instituted, said: In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode, although he claims, without however proving his contention, that the person responsible for this situation was his wife, as she turned him out of the house. From this state of affairs it results that it is the wife who is party abandoned, the husband not having prosecuted any action to keep her in his company and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation of the spouses should be regulated in the manner it indicates, has made the errors of law assigned in the first three grounds alleged, because the nature of the duty of affording mutual support is compatible and enforcible in all situations, so long as the needy spouse does not create any illicit situation of the court above described. lawphil.net If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under consideration, that

neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case just cited after an exhaustive examination of the entire subject. Although the case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the decision was promulgated by this court in that case in December, 1903, no change or modification of the rule has been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction. But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a determination of the question whether the wife has a good and sufficient cause for living separate from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The weakness of this argument lies in the assumption that the power to grant support in a separate action is dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much on the express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme sole. The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case, rest. G.R. No. L-23482 August 30, 1968 ALFONSO LACSON, petitioner, vs. CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents. ----------------------------G.R. No. L-23767 August 30, 1968 CARMEN SAN JOSE-LACSON, plaintiff-appellant, vs. ALFONSO LACSON, defendant-appellee.

----------------------------G.R. No. L-24259 August 30, 1968 ALFONSO LACSON, petitioner-appellee, vs. CARMEN SAN JOSE-LACSON, petitioner-appellant. Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson. Norberto Quisumbing for petitioner-appellee Alfonso Lacson. CASTRO, J.: These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue the resolution of which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision. The antecedent facts are not disputed. Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse) were married on February 14, 1953. To them were born four children, all alive. On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as support for them and herself. However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros Occidental (hereinafter referred to as the CFI). The important and pertinent portions of the petition, embodying their amicable settlement, read as follows: 3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in Manila. 4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval as required by Article 191 of the Civil Code of the Philippines the particular terms and conditions of their mutual agreement being as follows: (a) There will be separation of property petitioner Carmen San Jose-Lacson hereby waiving any and all claims for a share in property that may be held by petitioner Alfonso Lacson since they have acquired no property of any consequence. (b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as they may acquire without the consent of the other and all earnings from any profession, business or industry as may be derived by each petitioner shall belong to that petitioner exclusively. (c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson. (d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of P300.00 for the support of the children in her custody. (e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at their respective residences and, during the summer months, the two children in the custody of each petitioner shall be given to the other except that, for this year's summer months,

all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson this judgment of course being subject to enforcement by execution writ and contempt. 5. Petitioners have no creditors. WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except that the Court shall immediately approve the terms set out in paragraph 4 above and embody the same in a judgment immediately binding on the parties hereto to the end that any noncompliance or violation of its terms by one party shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors have not been terminated.". Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment) approving and incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all the four children to the respondent spouse and remitted money for their support. On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed the ... Joint Petition as the only means by which she could have immediate custody of the ... minor children who are all below the age of 7," and thereafter prayed that she "be considered relieved of the ... agreement pertaining to the custody and visitation of her minor children ... and that since all the children are now in her custody, the said custody in her favor be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to dismiss the complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued an order which sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity or legality of the compromise agreement in connection only with the custody of their minor children. On October 14, 1964 the Court of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below no evidence, testimonial or documentary, presented only a question of law pends resolution in the appeal." . The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered into the joint petition as the only means by which she could have immediate custody of her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining to the custody and visitation of her minor children and to relieve her from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963, denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated April 27, 1963 and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified the said appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and ... appellant did not specifically ask to be allowed to present evidence on her behalf." . The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in

excess of jurisdiction in ordering the immediate execution of the compromise judgment in its order of June 22, 1963, thus in effect depriving her of the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents therein and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution issued pursuant to the order of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for execution of the compromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it relates to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for execution of said judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration was denied by the Court of Appeals in its resolution dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned the following errors: (1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise judgment. (2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise judgment which is involved in two appeals, instead of the issue of grave abuse of discretion in ordering its execution. (3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based violates article 363 of the Civil Code. 1wph1.t As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise agreement entered into by the parties and the judgment of the CFI grounded on the said agreement, are conformable to law. We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with respect to the separation of property of the spouses and the dissolution of the conjugal partnership. The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial sanction is secured beforehand. Thus the new Civil Code provides: In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied) The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. (Art. 191, par. 4, emphasis supplied). In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements. It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened between them, the propriety of severing their financial and proprietary interests is manifest.

Besides, this Court cannot constrain the spouses to live together, as [I]t is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. .. At best such an order can be effective for no other purpose than to compel the spouse to live under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married couple shows that the policy of the practice is extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60). However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses, which again in the language of Arroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and fraught with grave danger to all concerned." We would like to douse the momentary seething emotions of couples who, at the slightest ruffling of domestic tranquility brought about by "mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion" without more would be minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in making it as difficult as possible for married couples impelled by no better cause than their whims and caprices to abandon each other's company. '... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59). We now come to the question of the custody and support of the children. It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was filed on April 27, 1963. However, when the respondent spouse signed the joint petition on the same matter of custody and support of the children and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner spouse who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so - had the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody and support of the children based on those grounds. For it is no defense against the dismissal of the action that the case before the CFI was filed later than the action before the JDRC, considering:. ... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide only that there is a pending action, not a pending prior action. 1 We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the custody of the two older children (both then below the age of 7). The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this new provision was explained by the Code Commission thus: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby

who is as yet unable to understand the situation." (Report of the Code Commission, p. 12). The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court. The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5 years old, respectively, to the father, in effect sought to separate them from their mother. To that extent therefore, it was null and void because clearly violative of article 363 of the Civil Code. Neither does the said award of custody fall within the exception because the record is bereft of any compelling reason to support the lower court's order depriving the wife of her minor children's company. True, the CFI stated in its order dated June 22, 1963, denying the respondent spouse's motion for reconsideration of its order dated April 27, 1963, that . ... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the bitter truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their children from embarrassment and inferiority complex which may inevitably stain their lives. .. If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the public records. This is for the sake and for the welfare of the minor children.". But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere insinuations; they must be confronted with facts before they can properly adjudicate. It might be argued and correctly that since five years have elapsed since the filing of these cases in 1963, the ages of the four children should now be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and Ramon 5. Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the respondent spouse's position. Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1wph1.t Article 356 of the new Civil Code provides: Every child: (1) Is entitled to parental care; (2) Shall receive at least elementary education; (3) Shall be given moral and civic training by the parents or guardian; (4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development. It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the right granted to him by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To be sure, this was not a sufficient basis to determine the fitness of each parent to be the custodian of the children. Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter alia:

... When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interestpermitting the child to choose which parent it prefers to live with if it be over ten years of age , unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty... (Emphasis supplied). One last point regarding the matter of support for the children assuming that the custody of any or more of the children will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of P150 to be given by the petitioner spouse for each child, still this Court must speak out its mind on the insufficiency of this amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of prices of all commodities, goods, and services, not to mention the fact that all the children are already of school age. We believe, therefore, that the CFI may increase this amount of P150 according to the needs of each child. With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three appeals. ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement as to costs. G.R. No. L-19671 November 29, 1965 PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendants-appellees. I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees. REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2 The facts, supported by the evidence of record, are the following: Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame. Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4"). On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal. In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2). On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958. But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court. The appellant ascribes, as errors of the trial court, the following: 1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the complaint;. 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and. 4. In dismissing the complaint and in denying the relief sought by the plaintiff. That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages. The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied) The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following: SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution. It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579). From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333). The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case: As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied) Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the

Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72) The appellant's first assignment of error is, therefore, sustained. However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132). There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen. In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue

humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees. With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only. Summing up, the Court rules: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country; (2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law; (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages; (4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. WHEREFORE, the decision under appeal is hereby modified as follows; (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao; (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees; (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees. Neither party to recover costs. G.R. No. 112872 April 19, 2001 THE INTESTATE ESTATE OF ALEXANDER T. TY, represented by the Administratrix, SYLVIA S. TY,petitioner, vs. COURT OF APPEALS, HON. ILDEFONSO E.GASCON, and ALEJANDRO B. TY, respondents.

G.R. No. 114672

April 19, 2001

SYLVIA S. TY, in her capacity as Administratrix of the Intestate Estate of Alexander T. Ty, petitioner, vs. COURT OF APPEALS and ALEJANDRO B. TY, respondents. MELO, J.: Before the Court are two separate petitions for certiorari, G.R. 112872 under Rule 65 alleging grave abuse of

discretion amounting to lack or excess of jurisdiction, and G.R. No.114672 under Rule 45 on purely questions of law. As these two cases involved the same parties and basically the same issues, including the main question of jurisdiction, the Court resolved to consolidate them. On February 27, 2001, the Court issued its resolution in A.M. 00-9-03 directing the re-distribution of old cases such as the ones on hand. Thus, the present ponencia. The antecedent facts are as follows:lawphil.net Petitioner Sylvia S. Ty was married to Alexander T. Ty, son of private respondent Alejandro B. Ty, on January 11, 1981. Alexander died of leukemia on May 19, 1988 and was survived by his wife, petitioner Sylvia, and only child, Krizia Katrina. In the settlement of his estate, petitioner was appointed administratrix of her late husbands intestate estate. On November 4, 1992, petitioner filed a motion for leave to sell or mortgage estate property in order to generate funds for the payment of deficiency estate taxes in the sum of P4,714,560.00. Included in the inventory of property were the following: 1) 142,285 shares of stock in ABT Enterprises valued at P14,228,500.00;itc-alf 2) 5,000 shares of stock in Intercontinental Paper Industries valued at P500,000.00; 3) 15,873 shares of stock in Philippine Crystal Manufacturing, Inc. valued at P1,587,300.00; 4) 800 shares of stock in Polymart Paper Industries, Inc. valued at P80,000.00;itc-alf 5) 1,800 shares of stock in A.T. Car Care Center, Inc. valued at P188,000.00; 6) 360 shares of stock in Union Emporium, Inc. valued at P36,000.00;lawphil.net 7) 380 shares of stock in Lexty, Inc. valued at P38,000.00; and 8) a parcel of land in Biak-na-Bato, Matalahib, Sta. Mesa, with an area of 823 square meters and covered by Transfer Certificate of Title Number 214087. Private respondent Alejandro Ty then filed two complaints for the recovery of the above-mentioned property, which was docketed as Civil Case Q-91-10833 in Branch 105 Regional Trial Court of Quezon City (now herein G.R. No. 112872), praying for the declaration of nullity of the deed of absolute sale of the shares of stock executed by private respondent in favor of the deceased Alexander, and Civil Case Q-92-14352 in Branch 90 Regional Trial Court of Quezon City (now G.R. No. 114672), praying for the recovery of the pieces of property that were placed in the name of deceased Alexander by private respondent, the same property being sought to be sold out, mortgaged, or disposed of by petitioner. Private respondent claimed in both cases that even if said property were placed in the name of deceased Alexander, they were acquired through private respondents money, without any cause or consideration from deceased Alexander. Motions to dismiss were filed by petitioner. Both motions alleged lack of jurisdiction of the trial court, claiming that the cases involved intra-corporate dispute cognizable by the Securities and Exchange Commission (SEC). Other grounds raised in G.R. No. 114672 were: 1) An express trust between private respondent Alejandro and his deceased son Alexander:itc-alf 2) Bar by the statute of limitations; 3) Private respondents violation of Supreme Court Circular 28-91 for failure to include a certification of non-forum shopping in his complaints; and 4) Bar by laches.lawphil.net The motions to dismiss were denied. Petitioner then filed petitions for certiorari in the Court of Appeals, which were also dismissed for lack of merit. Thus, the present petitions now before the Court. Petitioner raises the issue of jurisdiction of the trial court. She alleges that an intra-corporate dispute is involved. Hence, under Section 5(b) of Presidential Decree 902-A, the SEC has jurisdiction over the case. The Court cannot agree with petitioner.

Jurisdiction over the subject matter is conferred by law (Union Bank of the Philippines vs. Court of Appeals, 290 SCRA 198 [1998]). The nature of an action, as well as which court or body has jurisdiction over it, is determined based on the allegations contained in the complaint of the plaintiff ( Serdoncillo vs. Benolirao, 297 SCRA 448 [1998]; Tamano vs. Ortiz, 291 SCRA 584 [1998]), irrespective of whether or not plaintiff is entitled to recover upon all or some of the claims asserted therein ( Citibank, N.A. vs. Court of Appeals, 299 SCRA 390 [1998]). Jurisdiction cannot depend on the defenses set forth in the answer, in a motion to dismiss, or in a motion for reconsideration by the defendant (Dio vs. Conception, 296 SCRA 579 [1998]). Petitioner argues that the present case involves a suit between two stockholders of the same corporation which thus places it beyond the jurisdictional periphery of regular trial courts and more within the exclusive competence of the SEC by reason of Section 5(b) of Presidential Decree 902-A, since repealed. However, it does not necessarily follow that when both parties of a dispute are stockholders of a corporation, the dispute is automatically considered intra-corporate in nature and jurisdiction consequently falls with the SEC. Presidential Decree 902-A did not confer upon the SEC absolute jurisdiction and control over all matters affecting corporations, regardless of the nature of the transaction which gave rise to such disputes ( Jose Peneyra, et. al. vs. Intermediate Appellate Court, et. al., 181 SCRA 245 [1990] citing DMRC Enterprises vs. Este del Sol Mountain Reserve, Inc., 132 SCRA 293 [1984]). The better policy in determining which body has jurisdiction over this case would be to consider, not merely the status of the parties involved, but likewise the nature of the question that is the subject of the controversy ( Viray vs. Court of Appeals, 191 SCRA 309 [1990]). When the nature of the controversy involves matters that are purely civil in character, it is beyond the ambit of the limited jurisdiction of the SEC (Saura vs. Saura, Jr., 313 SCRA 465 [1999]). In the cases at bar, the relationship of private respondent when he sold his shares of stock to his son was one of vendor and vendee, nothing else. The question raised in the complaints is whether or not there was indeed a sale in the absence of cause or consideration. The proper forum for such a dispute is a regular trial court. The Court agrees with the ruling of the Court of Appeals that no special corporate skill is necessary in resolving the issue of the validity of the transfer of shares from one stockholder to another of the same corporation. Both actions, although involving different property, sought to declare the nullity of the transfers of said property to the decedent on the ground that they were not supported by any cause or consideration, and thus, are considered void ab initiofor being absolutely simulated or fictitious. The determination whether a contract is simulated or not is an issue that could be resolved by applying pertinent provisions of the Civil Code, particularly those relative to obligations and contracts. Disputes concerning the application of the Civil Code are properly cognizable by courts of general jurisdiction. No special skill is necessary that would require the technical expertise of the SEC. It should also be noted that under the newly enacted Securities Regulation Code (Republic Act No. 8799), this issue is now moot and academic because whether or not the issue is intra-corporate, it is the regional trial court and not longer the SEC that takes cognizance of the controversy. Under Section 5.2 of Republic Act No. 8799, original and exclusive jurisdiction to hear and decide cases involving intra-corporate controversies have been transferred to courts of general jurisdiction or the appropriate regional trial court. Other issues raised by the petitioner in G.R. No. 114672 are equally not impressed with merit. Petitioner contends that private respondent is attempting to enforce an unenforceable express trust over the disputed real property. Petitioner is in error when she contends that an express trust was created by private respondent when he transferred the property to his son. Judge Abraham P. Vera, in his order dated March 31, 1993 in Civil Case No. Q-92-14352, declared: [e]xpress trusts are those that are created by the direct and positive acts of the parties, by some writing or deed or will or by words evidencing an intention to create a trust. On the other hand, implied trusts are those which, without being expressed, are deducible from the nature of the transaction by operation of law as matters of equity, independently of the particular intention of the parties. Thus, if the intention to establish a trust is clear, the trust is express; if the intent to establish a trust is to be taken from circumstances or other matters indicative of such intent, then the trust is implied ( Cuaycong vs. Cuaycong, 21 SCRA 1191 [1967]. In the cases at hand, private respondent contends that the pieces of property were transferred in the name of the

deceased Alexander for the purpose of taking care of the property for him and his siblings. Such transfer having been effected without cause of consideration, a resulting trust was created. A resulting trust arises in favor of one who pays the purchase money of an estate and places the title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself. The trust is said to result in law from the acts of the parties. Such a trust is implied in fact (Tolentino, Civil Code of the Philippines, Vol. 4, p. 678). If a trust was then created, it was an implied, not an express trust, which may be proven by oral evidence (Article 1457, Civil Code), and it matters not whether property is real or personal ( Paras, Civil Code of the Philippines, Annotated, Vol. 4, p. 814). Petitioners assertion that private respondents action is barred by the statute of limitations is erroneous. The statute of limitations cannot apply in this case. Resulting trusts generally do not prescribe ( Caladiao vs. Vda. de Blas, 10 SCRA 691 [1964]), except when the trustee repudiates the trust. Further, an action to reconvey will not prescribe so long as the property stands in the name of the trustee ( Manalang, et. al. vs. Canlas, et. al., 94 Phil. 776 [1954]). To allow prescription would be to permit a trustee to acquire title against his principal and the true owner. Petitioner is also mistaken in her contention that private respondent violated Supreme Court Circular 28-91, dated September 17, 1991 and transfer having been effected without cause of consideration, a resulting trust was created. A resulting trust arises in favor of one who pays the purchase money of an estate and places the title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself. The trust is said to result in law from the acts of the parties. Such a trust is implied in fact (Tolentino, Civil Code of the Philippines, Vol. 4, p. 678). If a trust was then created, it was an implied, not an express trust, which may be proven by oral evidence (Article 1457, Civil Code), and it matters not whether property is real or personal ( Paras, Civil Code of the Philippines, Annotated, Vol. 4, p. 814).1wphi1.nt Petitioners assertion that private respondents action is barred by the statute of limitations is erroneous. The statute of limitations cannot apply in this case. Resulting trusts generally do not prescribe ( Caladiao vs. Vda. de Blas, 10 SCRA 691 [1964]), except when the trustee repudiates the trust. Further, an action to reconvey will not prescribe so long as the property stands in the name of the trustee ( Manalang, et. al. vs. Canlas, et. al., 94 Phil. 776 [1954]). To allow prescription would be to permit a trustee to acquire title against his principal and the true owner. Petitioner is also mistaken in her contention that private respondent violated Supreme Court Circular 28-91, dated September 17, 1991 and transfer having been affected without cause of consideration, a resulting trust was created. A resulting trust arises in favor of one who pays the purchase money of an estate and places the title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself. The trust is said to result in law from the acts of the parties. Such a trust is implied in fact (Tolentino, Civil Code of the Philippines, Vol. 4, p. 678). If a trust was then created, it was an implied, not an express trust, which may be proven by oral evidence (Article 1457, Civil Code), and it matters not whether property is real or personal ( Paras, Civil Code of the Philippines, Annotated, Vol. 4, p. 814). Petitioners assertion that private respondents action is barred by the statute of limitations is erroneous. The statute of limitations cannot apply in this case. Resulting trusts generally do not prescribe ( Caladiao vs. Vda. de Blas, 10 SCRA 691 [1964]), except when the trustee repudiates the trust. Further, an action to reconvey will not prescribe so long as the property stands in the name of the trustee ( Manalang, et. al. vs. Canlas, et. al., 94 Phil. 776 [1954]). To allow prescription would be to permit a trustee to acquire title against his principal and the true owner.

Petitioner is also mistaken in her contention that private respondent violated Supreme Court Circular 28-91, dated September 17, 1991 and which took effect on January 1, 1992. Although Section 5, Rule 7 of the 1997 Rules on Civil Procedure makes the requirement of filing a verification and certificate of non-forum-shopping applicable to all courts, this cannot be applied in the case at bar. At the time the original complaint was first filed on December 10 (for G.R. 112872) and 28 (for G.R. 114672), 1992, such certification requirement only pertained to cases in the Court of Appeals and the Supreme Court. The Revised Circular 28-91, which covered the certification requirement against non-forum shopping in all courts, only took effect April 1, 1994. Further, the subject heading of the original circular alone informs us of its topic: that of additional requisites for petitions filed with the Supreme Court and the Court of Appeals to prevent forum shopping or multiple filing of petitions and complaints. Section 1 of the Circular makes it mandatory to include the docket number of the case in the lower court or quasi-judicial agency whose order or judgment is sought to be reviewed. Such a requirement clearly indicates that the Circular only applies to actions filed with the Court of Appeals and the Supreme Court. Contrary to what petitioner contends, there could be no laches in this case. Private respondent filed his complaint in G.R. No. 112872 on December 10, 1992 (later amended on December 23, 1992) and in G.R. No. 114672 on December 28, 1992, only over a month after petitioner filed in the probate proceedings a petition to mortgage or sell the property in dispute. Private respondents actions were in fact very timely. As stated in the complaints, private respondent instituted the above actions as the property were in danger of being sold to a third party. If there were no pending cases to stop their sale, he would no longer be able to recover the same from an innocent purchaser for value. Withal, the Court need not go into any further discussion on whether the trial court erred in issuing a writ of preliminary injunction.1wphi1.nt WHEREFORE, the petition for certiorari in G.R. No. 112872 is DISMISSED, having failed to show that grave abuse of discretion was committed in declaring that the regional trial court had jurisdiction over the case. The petition for review on certiorari in G.R. 114672 is DENIED, having found no reversible error was committed. SO ORDERED.lawphil.net G.R. No. L-39587 March 24, 1934 ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs. THE MANILA RAILROAD COMPANY, defendant-appellant. Harvey and O'Brien for plaintiffs-appellants. Jose C. Abreu for defendant-appellant. VILLA-REAL, J.: This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of which reads as follows: Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius. In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial court in its said judgment, which will be discussed in the course of this decision. As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the same court a quo in its judgment in question, which will be discussed later. This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral

damages suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the complaint, with costs. The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint. The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit: The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the magazines The American Weekly of New York and The Sphere of London. Some of his works have been translated into various languages. He had others in preparation when the accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore, she acted as his secretary. At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the crossing. On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood. The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar. The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and,

for several days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to keep her balance. Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at great speed. Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the opinion that the accident was due to negligence on the part of the defendant-appellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees the flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes inspection of their work and supervision of the discharge of their duties. However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after them, employing the care and diligence that a good father of a family should apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had already become inevitable. In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the diligence of a good father of a family in the supervision of the said employees in the discharge of their duties. The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is reasonable. As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in which the said expenses have been incurred. Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big scar, which she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1vvphi1.ne+ As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have left deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her matrimonial future. With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness. This question has impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to be reasonable. As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in his business as journalist and author, which services consisted in going over his writings, translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead. The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration. In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows: The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . . Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the

duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. In the case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic services and their nature, rendered by her prior to the accident, in order that it may serve as a basis in estimating their value. Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing. In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages for deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her illness. The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions of section 510 of Act No. 190. Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered. A.C. No. 3405 June 29, 1998 JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent. PER CURIAM: Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint 1 for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the

Code of Ethics for Lawyers. 2 The complainant narrated: The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances. It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar. It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.] 3 This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 4 On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from "emotional confusion arising from extreme jealousy." The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous relationship with one Gina Espita nor abandoned his family. 5 Supporting her letter were an Affidavit of Desistance 6 and a Motion to Dismiss, 7 attached as Annexes A and B, which she filed before the IBP commission on bar discipline. 8 In a Decision dared October 8, 1991, the IBP Board of Governors 9dismissed the complaint of Mrs. Narag for failure to prosecute. 10 The case took an unexpected turn when, on November 25, 1991, this Court 11 received another letter 12 from the complainant, with her seven children 13 as co-signatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her. 14 In his Comment on the complainant's letter of November 11, 1991, filed in compliance with this Court's Resolution issued on July 6, 1992, 15 respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistance 16 and Motion to Dismiss, 17 even appearing before the investigating officer, Commissioner Racela, to testify under oath "that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof." In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed, viz: What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her "loving" jealousy. Then, as is her nature, a few hours afterwards,

when her jealousy cools off, she repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy. 18 On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP. 19 In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following: 20 2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in life: a purposeful and meaningful education. Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now full-fledged professionals, mature, and gainfully employed. . . . xxx xxx xxx Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family. Their marriage has become a torture chamber in which Your Respondent has been incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if only to preserve their family and their marriage. But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in "Death and the Maiden", can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. . . . 5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health . . . Even in this case, Your Respondent never revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of

the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a man's dearest possession in life his good name, reputation and dignity? Because of Complainant's virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant. 21 To prove the alleged propensity of his wife to file false charges, respondent presented as evidence the following list of the complaints she had filed against him and Gina Espita: 3.1 Complaint for Immorality/Neglect of Duty . . . 3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. . . . 3.3 Complaint for Concubinage. Provincial Prosecutor's Office of Cagayan. I.S No. 89-114. . . . 3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No. 1-92-0083. . . . 3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED. 3.6 Complaint for Concubinage. Provincial Prosecutor's Office of Cagayan. I.S. No. 92-109. DISMISSED. (. . .). Complainant filed Motion for Reconsideration. DENIED. (. . .). 3.7 Complaint for Disbarment (. . .) with S[upreme] C[ourt]. Withdrawn (. . .). DISMISSED by IBP Board of Governors (. . .). Re-instituted (. . .). 3.8 Complaint for Disbarment, again (. . .). Adm. Case No. 3405. Pending. 3.9 Complaint for Concubinage, again (. . .). Third MCTC, Tumauini, Isabela. Pending. . . . 22 In his desperate effort to exculpate himself, he averred: I. That all the alleged love letters and envelopes (. . .), picture (. . .) are inadmissible in evidence as enunciated by the Supreme Court in "Cecilia Zulueta vs. Court of Appeals, et.al.", G.R. No. 107383, February 20, 1996. (. . .). xxx xxx xxx II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint Louis College of Tuguegarao. He never caused the employment of said woman in the DTI. He never had or is having any illicit relationship with her anywhere, at any time. He never lived with her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, or in any other place. He never begot a child or children with her. Finally, respondent submits that all the other allegations of Mrs. Narag are false and fabricated, . . . xxx xxx xxx III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to the conjugal home many times with the help of mutual friends to save the marriage and the family from collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag refused all these efforts of respondent Narag. . . .

IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous, virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically, mentally, emotionally, and psychologically, . . . V. Complainant Julieta Narag's claim in her counter-manifestation dated March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained through force and intimidation, is not true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely without force or intimidation, as shown by the transcript of stenographic notes of the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. . . . xxx xxx xxx VI. Respondent Atty. Narag is now an old man a senior citizen of 63 years sickly, abandoned, disgraced, weakened and debilitated by progressively degenerative gout and arthritis, and hardly able to earn his own keep. His very physical, medical, psychological, and economic conditions render him unfit and unable to do the things attributed to him by the complainant. Please see the attached medical certificates, . . ., among many other similar certificates touching on the same ailments. Respondent is also suffering from hypertension. 23 On July 18, 1997, the investigating officer submitted his report, 24 recommending the indefinite suspension of Atty. Narag from the practice of law. The material portions of said report read as follows: Culled from the voluminous documentary and testimonial evidence submitted by the contending parties, two (2) issues are relevant for the disposition of the case, namely: a) Whether there was indeed a commission of alleged abandonment of respondent's own family and [whether he was] living with his paramour, Gina Espita; b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of respondent's Comment vis-avis his handwritten love letters, the due execution and contents of which, although he objected to their admissibility for being allegedly forgeries, were never denied by him on the witness stand much less presented and offered proof to support otherwise. Except for the testimonies of respondent's witnesses whose testimonies tend to depict the complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering everytime with streaks of jealousy, respondent did not present himself on the witness stand to testify and be cross-examined on his sworn comment; much less did he present his alleged paramour, Gina Espita, to disprove the adulterous relationship between him and their having begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Espita. Worse, respondent's denial that he is the father of the two is a ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Viewed from all the evidence presented, we find the respondent subject to disciplinary action as a member of the legal profession. 25 In its Resolution 26 issued on August 23, 1997, the IBP adopted and approved the investigating commissioner's recommendation for the indefinite suspension of the respondent. 27 Subsequently the complaint sought the disbarment of her husband in a Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and, in its Resolution dated November 30, 1997, denied respondent's Motion for Reconsideration. After a careful scrutiny of the records of the proceedings and the evidence presented by the parties, we find that the conduct of respondent warrants the imposition of the penalty of disbarment. The Code of Professional Responsibility provides: Rule 1.01 A lawyer shall not engage in

unlawful, dishonest, immoral or deceitful conduct. CANON 7 A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. Thus, good moral character is not only a condition precedent 28 to the practice of law, but a continuingqualification for all members of the bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. 29 Immoral conduct has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. 30 Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree 31 or committed under such scandalous or revolting circumstances as to shock the common sense of decency . 32 We explained in Barrientos vs. Daarol 33 that, "as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards." Respondent Narag is accused of gross immorality for abandoning his family in order to live with Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence. 34 Presented by complainant as witnesses, aside from herself. 35 were: Charlie Espita, 36 Magdalena Bautista, 37Bienvenido Eugenio, 38 Alice Carag, 39 Dr. Jervis B. Narag, 40 Dominador Narag, Jr., 41 and Nieves F. Reyes. 42 Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainant's charge against respondent in these categorical statements he gave to the investigating officer: Q Mr. Witness, do you know Atty. Narag? A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita. Q If Atty. Narag is here, can you point [to] him? A Yes, sir. (Witness pointed to the respondent, Atty. Dominador Narag) Q Why do you know Atty. Narag? ATTY. NARAG: Already answered. He said I am the live-in partner. CONTINUATION OF THE DIRECT A Because he is the live-in partner of my sister and that they are now living together as husband and wife and that they already have two children, Aurelle Dominic and Kyle Dominador. xxx xxx xxx

During cross-examination conducted by the respondent himself, Charlie Espita repeated his account that his sister Gina was living with the respondent, with whom she had two children: Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You claim that? A Yes, sir. Q Why do you say that? A Because at present you are living together as husband and wife and you have already two children and I know that is really an immoral act which you cannot just allow me to follow since my moral values don't allow me that my sister is living with a married man like you. Q How do you know that Atty. Narag is living with your sister? Did you see them in the house? A Yes, si[r]. xxx xxx xxx Q You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle Dominador, is it not? A Yes, sir. Q How do you know that they are the children of Atty. Narag? A Because you are staying together in that house and you have left your family. 44 In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing at the disbarment proceedings. 45 Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise: Q Mr. Witness, do you know the respondent in this case? A I know him very well, sir. Q Could you please tell us why do you know him? A Because he was always going to the house of my son-in-law by the name of Charlie Espita. xxx xxx xxx Q Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? A At that time, he [was] residing in the house of Reynaldo Angubong, sir. Q And this is located where? A Centro Tamauini, Isabela, sir. Q And you specifically, categorically state under oath that this is the residence of Atty. Narag? A Yes, sir. xxx xxx xxx Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? A Yes, sir. 46

Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children Randy, Bong and Rowena that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent "went back to his woman," and that Atty. Narag had maltreated his wife. 47 On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant, also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person. 48Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them. While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys. 49 This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a "violent husband-beater, vitriolic and unbending," and as an "insanely and pathologically jealous woman," whose only obsession was to "destroy, destroy and destroy" him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidence 50 and ten (10) witnesses. 51 We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children. Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife. Respondent may have provided well for his family they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance. 52 As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support. 53 Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with her paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their father's love. Respondent's son, Jervis B. Narag, showed his resentment towards his father's moral frailties in his testimony: Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although am a

God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir. xxx xxx xxx COMR. JOSE: I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. CONTINUATION. A With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime. Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. A Sort of, sir. Q You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? A Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love. 54 Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through: Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? A This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Q Will you please tell us specifically why you and your wife parted ways? A Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a well-known family in our community. Q How about the effect on your brothers and sisters? Please tell us what are those. A Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother. xxx xxx xxx Q Why did your wife leave you? A The truth is because of the things that had happened in our family, Your Honor. Q In your wife's family?

A In our family, sir. Q And what do you mean by that? A What meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a "puta" in provincial government, which my mother-in-law hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor. 55 Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordova 56: "The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage." In Toledo vs. Toledo, 57 the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan, 58 the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting, 59 "a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court." WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. G.R. No. L-29959 December 3, 1929 AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant, vs. RAFAEL VILLANUEVA, defendant-appellee. Harvey and O'Brien for appellant. Jose G. Generoso for appellee. STREET, J.: This action was instituted on May 27, 1927, in the Court of First Instance of the City of Manila by Aurelia Dadivas de Villanueva against her husband, Rafael Villanueva, for the purpose of obtaining separate maintenance and custody of the two younger minor children, Guillermo and Sergio Villanueva, as well as a proper allowance for professional legal services rendered by the plaintiff's attorneys in this action, as well as costs. Upon hearing the cause the trial court absolved the defendant from the complaint and abrogated a prior order of the court for maintenance pendente lite, with costs against the plaintiff. From this judgment the plaintiff appealed. The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant, Rafael Villanueva, on July 16, 1905, in the City of Manila, where the pair have since resided. To them have been born three children, namely,

Antonio, Guillermo, and Sergio, who were, at the time of the trial of this case in the lower court, aged respectively 18, 10 and 9 years. The grounds on which separate maintenance is sought infidelity and cruelty. With respect to the first of these charges the proof shows that during the period of about ten years prior to the institution of the action, the defendant was guilty of repeated acts of infidelity with four different women, and even after the action was begun, he is shown to have had illicit relations with still another, an incident which is incorporated in the case by means of the amended complaint. Thought at all times protesting against these irregularities in her husband's conduct, the plaintiff appears to have exhibited forbearance; and she long continued in marital relations with him with a view to keeping the family intact as well as with hope of retrieving him from his erring course. In the end, however, the incorrigible nature of the defendant in his relations with other women, coupled with a lack of consideration and even brutality towards the plaintiff, caused her to withdraw from the domestic hearth and to establish a separate abode for herself and two younger children. This final separation occurred on April 20, 1927, about one month before the present action was begun. The proof with respect to the charge of cruelty shows that the defendant has not infrequently treated the plaintiff roughly and that he has at times directed abusive words to her and challenged her to carry her troubles into court. The proof in support of this charge does not in our opinion establish a case for separate maintenance, without relation to the graver charge of conjugal infidelity; and if the case depended, for its solution, upon cruelty alone, the case could doubtless be affirmed, in conformity with the doctrine stated in Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be unproved or insufficient. In that case, however, we were able to record the fact that neither of the spouses had at any time been guilty of conjugal infidelity, and that neither had, so far as the proof showed, even given just cause to the other to suspect illicit relations with any person. In the case before us repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if not an incurable offender against the sanctity of the marriage tie. This give the wife an undeniable right to relief. The law is not so unreasonable as to require a wife to live in marital relations with a husband whose incurable propensity towards other women makes common habitation with him unbearable. Deeply rooted instincts of human nature sanction the separation in such case, and the law is not so unreasonable as to require as acquiescence on the part of the injured party which is beyond the capacity of nature. In order to entitle a wife to maintain a separate home and to require separate maintenance from her husband it is not necessary that the husband should bring a concubine into the marital domicile. Perverse and illicit relations with women outside of the marital establishment are enough. As was said by Justice Moreland in Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relations and repudiate his duties thereunder. In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the opinion that the sum of P500 per month will suffice, this being in addition to the use which she makes for living quarters of a modest property belonging to the conjugal estate. During their marital life the spouses have acquired real estate which, at the time of the trial, was assessed at more than P85,000, and which at the same time was reasonably valued at more than P125,000. In addition to this the defendant appears to be now earning a substantial salary in commercial activities. The plaintiff is also entitled to an allowance for attorney's fees which we fix at P1,000 for services rendered in the trial court and the same amount for services rendered in this court. It appears that the two younger children are now living with the plaintiff, and her right to their custody will not be disturbed. While this litigation was pending in the lower court the defendant was required to pay the amount of P500 per month for maintenance of the plaintiff, under an interlocutory order of June 15, 1927. But these payments ceased when the appealed decision was promulgated on or about the end of March, 1928. The plaintiff in this case is therefore entitled to judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall be promulgated in this case, and from that date the defendant will be required to pay P500 per month for maintenance as already suggested. The plaintiff will also be awarded the sum of P720 in satisfaction of the amount paid out for the transcript necessary to this appeal. The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of the defendant the sum of P2,000 for attorney's fees, the sum of P720 for expenses of procuring transcript, and the sum of P500 per

month, beginning April 1, 1928, until the promulgation of this decision, after which the date the defendant is ordered to pay to the plaintiff by way of maintenance, on or before the 10th day of each month, the sum of P500. So ordered, with costs against appellee.