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Republic of the Philippines

G.R. No. 11263 November 2, 1916
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.

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
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
And articles 143 and 149 of the Civil Code are as
ART. 143. The following are obliged to
support each other reciprocally to the whole
extent specified in the preceding article.
1. The consorts.
x x x x x x x x x
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
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
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;
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
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.
Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:
I based my vote in this case upon the ground that
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
relation and repudiate his duties thereunder. In law and
for all purposes within its purview, the wife still remains
an inmate of the conjugal domicile; for I regard it as a
principle of law universally recognized that where a
person by his wrongful and illegal acts creates a
condition which under ordinary circumstances would
produce the loss of rights or status pertaining to
another, the law will, whenever necessary to protect
fully the rights or status of the person affected by such
acts, regard the condition by such acts created as not
existing and will recur to and act upon the original
situation of the parties to determine their relative rights
or the status of the person adversely affected.
I do not believe, therefore, that the case is
properly conceived by defendant, when the
consideration thereof proceeds solely on the theory
that the wife is outside the domicile fixed by the
husband. Under the facts alleged in the complainant the
wife is legally still within the conjugal domicile.

Republic of the Philippines
G.R. No. L-17014 August 11, 1921
MARIANO B. ARROYO, plaintiff-appellant,
Fisher & DeWitt for appellant.
Powell & Hill for appellee.
Mariano B. Arroyo and Dolores C. Vasquez de Arroyo
were united in the bonds of wedlock by marriage in the
year 1910, and since that date, with a few short
intervals of separation, they have lived together as man
and wife in the city of Iloilo until July 4, 1920, when the
wife went away from their common home with the
intention of living thenceforth separate from her
husband. After efforts had been made by the husband
without avail to induce her to resume marital relations,
this action was initiated by him to compel her to return
to the matrimonial home and live with him as a dutiful
wife. The defendant answered, admitting the fact of
marriage, and that she had left her husband's home
without his consent; but she averred by way of defense
and cross-complaint that she had been compelled to
leave by cruel treatment on the part of her husband.
Accordingly she in turn prayed for affirmative relief, to
consist of (1) a decree of separation; (2) a liquidation of
the conjugal partnership; (3) and an allowance for
counsel fees and permanent separate maintenance.
Upon hearing the cause the lower court gave judgment
in favor of the defendant, authorizing her to live apart
from her husband, granting her alimony at the rate of
P400 per month, and directing that the plaintiff should
pay to the defendant's attorney the sum of P1,000 for
his services to defendant in the trial of the case. The
plaintiff thereupon removed the case with the usual
formalities by appeal to this court.
The trial judge, upon consideration of the evidence
before him, reached the conclusion that the husband
was more to blame than his wife and that his continued
ill-treatment of her furnished sufficient justification for
her abandonment of the conjugal home and the
permanent breaking off of marital relations with him.
We have carefully examined and weighed every line of
the proof, and are of the opinion that the conclusion
stated is wholly untenable. The evidence shows that the
wife is afflicted with a disposition of jealousy towards
her husband in an aggravated degree; and to his cause
are chiefly traceable without a doubt the many miseries
that have attended their married life. In view of the
decision which we are to pronounce nothing will be said
in this opinion which will make the resumption of
married relations more difficult to them or serve as a
reminder to either of the mistakes of the past; and we
prefer to record the fact that so far as the proof in this
record shows neither of the spouses has at any time
been guilty of conjugal infidelity, or has given just cause
to the other to suspect illicit relations with any person.
The tales of cruelty on the part of the husband towards
the wife, which are the basis of the cross-action, are in
our opinion no more than highly colored versions of
personal wrangles in which the spouses have allowed
themselves from time to time to become involved and
would have little significance apart from the morbid
condition exhibited by the wife. The judgment must
therefore be recorded that the abandonment by her of
the marital home was without sufficient justification in
In examining the legal questions involved, it will be
found convenient to dispose first of the defendant's
cross-complaint. To begin with, the obligation which the
law imposes on the husband to maintain the wife is a
duty universally recognized in civil society and is clearly
expressed in articles 142 and 143 of the Civil code. The
enforcement of this obligation by the wife against the
husband is not conditioned upon the procurance of a
divorce by her, nor even upon the existence of a cause
for divorce. Accordingly it had been determined that
where the wife is forced to leave the matrimonial abode
and to live apart from her husband, she can, in this
jurisdiction, compel him to make provision for her
separate maintenance (Goitia vs. Campos Rueda, 35
Phil., 252); and he may be required to pay the expenses,
including attorney's fees, necessarily incurred in
enforcing such obligation, (Mercado vs. Ostrand and
Ruiz, 37 Phil., 179.) Nevertheless, the interests of both
parties as well as of society at large require that the
courts should move with caution in enforcing the duty
to provide for the separate maintenance of the wife, for
this step involves a recognition of the de
facto separation of the spouses a state which is
abnormal and fraught with grave danger to all
concerned. From this consideration it follows that
provision should not be made for separate maintenance
in favor of the wife unless it appears that the continued
cohabitation of the pair has become impossible and
separation necessary from the fault of the husband.
In Davidson vs Davidson, the Supreme Court of
Michigan, speaking through the eminent jurist, Judge
Thomas M. Cooley, held that an action for the support
of the wife separate from the husband will only be
sustained when the reasons for it are imperative (47
Mich., 151). That imperative necessity is the only
ground on which such a proceeding can be maintained
also appears from the decision in Schindel vs. Schindel
(12 Md., 294). In the State of South Carolina, where
judicial divorces have never been procurable on any
ground, the Supreme court fully recognizes the right of
the wife to have provision for separate maintenance,
where it is impossible for her to continue safely to
cohabit with her husband; but the same court has more
than once rejected the petition of the wife for separate
maintenance where it appeared that the husband's
alleged cruelty or ill-treatment was provoked by the
wife's own improper conduct. (Rhame vs. Rhame, 1
McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597;
Boydvs. Boyd, Har. Eq. [S. Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the
judgment of the English Ecclesiastical Court in a case
where cruelty on the part of the husband was relied
upon to secure a divorce for the wife, made use of the
following eloquent words, which are perhaps even
more applicable in a proceeding for separate
maintenance in a jurisdiction where, as here, a divorce
cannot be obtained except on the single ground of
adultery and this, too, after the conviction of the guilty
spouse in a criminal prosecution for that crime. Said he:
That the duty of cohabitation is released by the
cruelty of one of the parties is admitted, but the
question occurs, What is cruelty? . . .
What merely wounds the mental feelings is in
few cases to be admitted where they are not
accompanied with bodily injury, either actual or
menaced. Mere austerity of temper, petulance
of manners, rudeness of language, a want of
civil attention and accommodation, even
occasional sallies of passion, if they do not
threaten bodily harm, do not amount to legal
cruelty: they are high moral offenses in the
marriage-state undoubtedly, not innocent
surely in any state of life, but still they are not
that cruelty against which the law can relieve.
Under such misconduct of either of the parties,
for it may exist on the one side as well as on the
other, the suffering party must bear in some
degree the consequences of an injudicious
connection; must subdue by decent resistance
or by prudent conciliation; and if this cannot be
done, both must suffer in silence. . . .
The humanity of the court has been loudly and
repeatedly invoked. Humanity is the second
virtue of courts, but undoubtedly the first is
justice. If it were a question of humanity simply,
and of humanity which confined its views
merely to the happiness of the present parties,
it would be a question easily decided upon first
impressions. Every body must feel a wish to
sever those who wish to live separate from each
other, who cannot live together with any
degree of harmony, and consequently with any
degree of happiness; but my situation does not
allow me to indulge the feelings, much less the
first feelings of an individual. The law has said
that married persons shall not be legally
separated upon the mere disinclination of one
or both to cohabit together. . . .
To vindicate the policy of the law is no
necessary part of the office of a judge; but if it
were, it would not be difficult to show that the
law in this respect has acted with its usual
wisdom and humanity with that true wisdom,
and that real humanity, that regards the general
interests of mankind. For though in particular
cases the repugnance of the law to dissolve the
obligations of matrimonial cohabitation may
operate with great severity upon individual, 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 cannot shake off; they
become good husbands and good wives form
the necessity of remaining husbands and wives;
for necessity is a powerful master in teaching
the duties which it imposes. . . . In this case, as
in many others, the happiness of some
individuals must be sacrificed to the greater and
more general good. (Evans vs. Evans, 1 Hag.
Con., 35; 161 Eng. Reprint, 466, 467.)
In the light of the considerations stated, it is obvious
that the cross-complaint is not well founded and none
of the relief sought therein can be granted.
The same considerations that require the dismissal of
the cross-complaint conclusively prove that the plaintiff,
Mariano B. Arroyo, has done nothing to forfeit his right
to the marital society of his wife and that she is under
an obligation, both moral and legal, to return to the
common home and cohabit with him. The only question
which here arises is as to the character and extent of
the relief which may be properly conceded to him by
judicial decree.
The action is one by which the plaintiff seeks the
restitution of conjugal rights; and it is supposed in the
petitory part of the complaint that he is entitled to a
permanent mandatory injunction requiring the
defendant to return to the conjugal home and live with
him as a wife according to the precepts of law and
morality. Of course if such a decree were entered, in
unqualified terms, the defendant would be liable to
attachment for contempt, in case she should refuse to
obey it; and, so far as the present writer is aware, the
question is raised for the first time in this jurisdiction
whether it is competent for the court to make such an
Upon examination of the authorities we are convinced
that it 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.
Of course where the property rights of one of the pair
are invaled, an action for restitution of such rights can
be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible by process of
contempt, may be entered to compel the restitution of
the purely personal rights of consortium. At best such
an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and
the experience of these countries where the court of
justice have assumed to compel the cohabitation of
married people shows that the policy of the practice is
extremely questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the restitution
of conjugal rights at the instance of either husband or
wife; and if the facts were found to warrant it that court
would make a mandatory decree, enforcible by process
of contempt in case of disobedience, requiring the
delinquent party to live with the other and render
conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to enforce
such orders, and in Weldon vs. Weldon (9 P. D., 52),
decided in 1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of the High
Court of Justice, expressed his regret that the English
law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal
rights in England, could be obtained by the injured
spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment
against the practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still be
procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the
periodical payment of a stipend in the character of
In the voluminous jurisprudence of the United States,
only one court, so far as we can discover, has ever
attempted to make a peremptory order requiring one of
the spouses to live with the other; and that was in a
case where a wife was ordered to follow and live with
her husband, who had changed his domicile to the City
of New Orleans. The decision referred to
(Gahn vs. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article
56 of the Spanish Civil Code. It was decided many years
ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the
American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148.)
In a decision of January 2, 1909, the supreme court of
Spain appears to have affirmed an order of
the Audencia Territorial de Valladolid requiring a wife to
return to the marital domicile, and in the alternative,
upon her failure to do so, to make a particular
disposition of certain money and effects then in her
possession and to deliver to her husband, as
administrator of the ganancial property, all income,
rents, and interest which might accrue to her from the
property which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11.) but it does not appear that this
order for the return of the wife to the marital domicile
was sanctioned by any other penalty than the
consequences that would be visited upon her in respect
to the use and control of her property; and it does not
appear that her disobedience to that order would
necessarily have been followed by imprisonment for
We are therefore unable to hold that Mariano B. Arroyo
in this case is entitled to the unconditional and absolute
order for the return of the wife to the marital domicile,
which is sought in the petitory part of the complaint;
though he is, without doubt, entitled to a judicial
declaration that his wife has presented herself without
sufficient cause and that it is her duty to return.
Therefore, reversing the judgment appealed from, in
respect both to the original complaint and the cross-bill,
it is declared that Dolores Vasquez de Arroyo has
absented herself from the marital home without
sufficient cause; and she is admonished that it is her
duty to return. The plaintiff is absolved from the cross-
complaint, without special pronouncement as to costs
of either instance. So ordered.
Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ.,
Republic of the Philippines
G.R. No. L-18008 October 30, 1962
ELISEA LAPERAL, petitioner,
Martin B. Laurea and Associates for petitioner.
Office of the Solicitor General for oppositor.
On May 10, 1960, Elisea Laperal filed in the Court of
First Instance of Baguio (Sp Proc. No. 433) a petition
which reads:
1. That petitioner has been a bona fide resident
of the City of Baguio for the last three years
prior to the date of the filing of this petition;
2. That petitioner's maiden name is ELISEA
LAPERAL; that on March 24, 1939, she married
Mr. Enrique R. Santamaria; that in a partial
decision entered on this Honorable Court on
January 18, 1958, in Civil Case No. 356 of this
Court, entitled 'Enrique R. Santamaria vs. Elisea
L. Santamaria' Mr. Enrique Santamaria was
given a decree of legal separation from her; that
the said partial decision is now final;
3. That during her marriage to Enrique R.
Santamaria, she naturally used, instead of her
maiden name, that of Elisea L. Santamaria; that
aside from her legal separation from Enrique R.
Santamaria, she has also ceased to live with him
for many years now;
4. That in view of the fact that she has been
legally separated from Mr. Enrique R.
Santamaria and has likewise ceased to live with
him for many years, it is desirable that she be
allowed to change her name and/or be
permitted to resume using her maiden name, to
WHEREFORE, petitioner respectfully prayed
that after the necessary proceedings are had,
she be allowed to resume using her maiden
name of Elisea Laperal.
The petition was opposed by the City Attorney of
Baguio on the ground that the same violates the
provisions of Article 370 (should be 372) of the Civil
Code, and that it is not sanctioned by the Rules of
In its decision of October 31, 1960, the court denied the
petition for the reason that Article 372 of the Civil Code
requires the wife, even after she is decreed legally
separated from her husband, to continue using the
name and surname she employed before the legal
separation. Upon petitioner's motion, however, the
court, treating the petition as one for change of name,
reconsidered its decision and granted the petition on
the ground that to allow petitioner, who is a
businesswoman decreed legally separated from her
husband, to continue using her married name would
give rise to confusion in her finances and the eventual
liquidation of the conjugal assets. Hence, this appeal by
the State.
The contention of the Republic finds support in the
provisions of Article 372 of the New Civil Code which
ART. 372. When legal separation has been
granted, the wife shall continue using her name
and surname employed before the legal
separation. (Emphasis supplied)
Note that the language of the statute is mandatory that
the wife, even after the legal separation has been
decreed, shall continue using her name and surname
employed before the legal separation. This is so
because her married status is unaffected by the
separation, there being no severance of the vinculum. It
seems to be the policy of the law that the wife should
continue to use the name indicative of her unchanged
status for the benefit of all concerned.
The appellee contends, however, that the petition is
substantially for change of her name from Elisea L.
Santamaria, the one she has been using, since her
marriage, to Elisea Laperal, her maiden name, giving as
reason or cause therefor her being legally separated
from the husband Enrique R. Santamaria, and the fact
that they have ceased to live together for many years.
There seems to be no dispute that in the institution of
these proceedings, the procedure prescribed in Rule
103 of the Rules of Court for change of name has been
observed. But from the petition quoted in full at the
beginning of these opinion, the only reason relied upon
for the change of name is the fact that petitioner is
legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful, to
say the least, whether Rule 103 which refers to change
of name in general, may prevail over the specific
provisions of Article 372 of the New Civil Code with
regards to married women legally separated from their
husbands. Even, however, applying Rule 103 to this
case, the fact of legal separation alone which is the
only basis for the petition at bar is, in our opinion,
not a sufficient ground to justify a change of the name
of herein petitioner, for to hold otherwise would be to
provide an easy circumvention of the mandatory
provisions of Article 372.
It is true that in the second decision which reconsidered
the first it is stated that as the petitioner owns
extensive business interests, the continued used of her
husband surname may cause undue confusion in her
finances and the eventual liquidation of the conjugal
assets. This finding is however without basis. In the first
place, these were not the causes upon which the
petition was based; hence, obviously no evidence to this
effect had been adduced. Secondly, with the issuance of
the decree of legal separation in 1958, the conjugal
partnership between petitioner and her husband had
automatically been dissolved and liquidated. (Art.
106[2], Civil Cod). Consequently, there could be no
more occasion for an eventual liquidation of the
conjugal assets.
WHEREFORE, the order of the lower court of December
1, 1960, granting the petition, is hereby set aside and
the petition dismissed. Without costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and
Makalintal, JJ., concur.



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G.R. No. 167746




August 28, 2007
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Before this Court is a Petition for Review
on Certiorari filed by
petitioner Restituto Alcantara assailing the Decision
the Court of Appeals dated 30 September 2004 in CA-
G.R. CV No. 66724 denying petitioners appeal and
affirming the decision
of the Regional Trial Court (RTC)
of Makati City, Branch 143, in Civil Case No. 97-1325
dated 14 February 2000, dismissing his petition for
annulment of marriage.

The antecedent facts are:

A petition for annulment of marriage
was filed
by petitioner against respondent Rosita
A. Alcantara alleging that on 8 December 1982 he and
respondent, without securing the required marriage
license, went to the Manila City Hall for the purpose of
looking for a person who could arrange a marriage for
them. They met a person who, for a fee, arranged their
wedding before a certain Rev. Aquilino Navarro, a
Minister of the Gospel of the CDCC BR Chapel.
got married on the same day, 8 December
1982. Petitioner and respondent went through another
marriage ceremony at the San Jose de Manuguit Church
in Tondo, Manila, on 26 March 1983. The marriage was
likewise celebrated without the parties securing a
marriage license. The alleged marriage license,
procured in Carmona, Cavite, appearing on the
marriage contract, is a sham, as neither party was a
resident of Carmona, and they never went
to Carmona to apply for a license with the local civil
registrar of the said place. On 14 October 1985,
respondent gave birth to their child Rose
Ann Alcantara. In 1988, they parted ways and lived
separate lives. Petitioner prayed that after due hearing,
judgment be issued declaring their marriage void and
ordering the Civil Registrar to cancel the corresponding
marriage contract
and its entry on file.

Answering petitioners petition for annulment of
marriage, respondent asserts the validity of their
marriage and maintains that there was a marriage
license issued as evidenced by a certification from the
Office of the Civil Registry of Carmona, Cavite. Contrary
to petitioners representation, respondent gave birth to
their first child named Rose Ann Alcantara on 14
October 1985 and to another daughter named Rachel
Ann Alcantara on 27 October 1992.
Petitioner has a
mistress with whom he has three children.
only filed the annulment of their marriage to evade
prosecution for concubinage.
Respondent, in fact, has
filed a case for concubinage against petitioner before
theMetropolitan Trial Court of Mandaluyong City,
Branch 60.
Respondent prays that the petition for
annulment of marriage be denied for lack of merit.

On 14 February 2000, the RTC of Makati City,
Branch 143, rendered its Decision disposing as follows:

The foregoing considered,
judgment is rendered as follows:

1. The Petition is dismissed
for lack of merit;

2. Petitioner is ordered to
pay respondent the sum of twenty
thousand pesos (P20,000.00) per month
as support for their two (2) children on
the first five (5) days of each month;

3. To pay the costs.

As earlier stated, the Court of Appeals rendered its
Decision dismissing the petitioners appeal. His Motion
for Reconsideration was likewise denied in a resolution
of the Court of Appeals dated 6 April 2005.

The Court of Appeals held that the marriage
license of the parties is presumed to be regularly issued
and petitioner had not presented any evidence to
overcome the presumption. Moreover, the parties
marriage contract being a public document is a prima
facie proof of the questioned marriage under Section
44, Rule 130 of the Rules of Court.

In his Petition before this Court, petitioner raises
the following issues for resolution:

a. The Honorable Court of Appeals
committed a reversible error
when it ruled that the Petition
for Annulment has no legal and
factual basis despite the
evidence on record that there
was no marriage license at the
precise moment of the
solemnization of the marriage.

b. The Honorable Court of Appeals
committed a reversible error
when it gave weight to the
Marriage License No. 7054133
despite the fact that the same
was not identified and offered
as evidence during the trial, and
was not the Marriage license
number appearing on the face
of the marriage contract.

c. The Honorable Court of Appeals
committed a reversible error
when it failed to apply the
ruling laid down by this
Honorable Court in the case
of Sy vs. Court of Appeals. (G.R.
No. 127263, 12 April 2000 [330
SCRA 550]).

d. The Honorable Court of Appeals
committed a reversible error
when it failed to relax the
observance of procedural rules
to protect and promote the
substantial rights of the party

We deny the petition.

Petitioner submits that at the precise time that his
marriage with the respondent was celebrated, there
was no marriage license because he and respondent
just went to theManila City Hall and dealt with a fixer
who arranged everything for them.
The wedding
took place at the stairs in Manila City Hall and not in
CDCC BR Chapel where Rev.Aquilino Navarro who
solemnized the marriage belongs.
He and
respondent did not go to Carmona, Cavite, to apply for
a marriage license. Assuming a marriage license
fromCarmona, Cavite, was issued to them, neither he
nor the respondent was a resident of the place. The
certification of the Municipal Civil Registrar
of Carmona, Cavite, cannot be given weight because the
certification states that Marriage License number
7054133 was issued in favor of
Mr. Restituto Alcantara and Miss Rosita Almario
their marriage contract bears the number 7054033 for
their marriage license number.

The marriage involved herein having been
solemnized on 8 December 1982, or prior to
the effectivity of the Family Code, the applicable law to
determine its validity is the Civil Code which was the
law in effect at the time of its celebration.

A valid marriage license is a requisite of marriage
under Article 53 of the Civil Code, the absence of which
renders the marriage void ab initio pursuant to Article
in relation to Article 58 of the same Code.

Article 53 of the Civil Code
which was the law
applicable at the time of the marriage of the parties

Art. 53. No marriage shall be
solemnized unless all these requisites
are complied with:

(1) Legal capacity of the
contracting parties;

(2) Their consent, freely

(3) Authority of the person
performing the marriage; and

(4) A marriage license, except
in a marriage of exceptional character.

The requirement and issuance of a marriage
license is the States demonstration of its involvement
and participation in every marriage, in the maintenance
of which the general public is interested.

Petitioner cannot insist on the absence of a
marriage license to impugn the validity of his
marriage. The cases where the court considered the
absence of a marriage license as a ground for
considering the marriage void are clear-cut.

In Republic of the Philippines v. Court of
the Local Civil Registrar issued a certification
of due search and inability to find a record or entry to
the effect that Marriage License No. 3196182 was
issued to the parties. The Court held that the
certification of due search and inability to find a
record or entry as to the purported marriage license,
issued by the Civil Registrar of Pasig, enjoys probative
value, he being the officer charged under the law to
keep a record of all data relative to the issuance of a
marriage license. Based on said certification, the Court
held that there is absence of a marriage license that
would render the marriage void ab initio.

In Cario v. Cario,
the Court considered the
marriage of therein petitioner Susan Nicdao and the
deceased Santiago S. Carino as void ab initio. The
records reveal that the marriage contract of petitioner
and the deceased bears no marriage license number
and, as certified by the Local Civil Registrar of San Juan,
Metro Manila, their office has no record of such
marriage license. The court held that the certification
issued by the local civil registrar is adequate to prove
the non-issuance of the marriage license. Their
marriage having been solemnized without the
necessary marriage license and not being one of the
marriages exempt from the marriage license
requirement, the marriage of the petitioner and the
deceased is undoubtedly void ab initio.

In Sy v. Court of Appeals,
the marriage license
was issued on 17 September 1974, almost one year
after the ceremony took place on 15 November
1973. The Court held that the ineluctable conclusion is
that the marriage was indeed contracted without a
marriage license.

In all these cases, there was clearly an absence of
a marriage license which rendered the marriage void.

Clearly, from these cases, it can be deduced that
to be considered void on the ground of absence of a
marriage license, the law requires that the absence of
such marriage license must be apparent on the
marriage contract, or at the very least, supported by a
certification from the local civil registrar that no such
marriage license was issued to the parties. In this case,
the marriage contract between the petitioner and
respondent reflects a marriage license number. A
certification to this effect was also issued by the local
civil registrar of Carmona, Cavite.
The certification
moreover is precise in that it specifically identified the
parties to whom the marriage license was issued,
namely RestitutoAlcantara and Rosita Almario, further
validating the fact that a license was in fact issued to
the parties herein.

The certification of Municipal Civil
Registrar Macrino L. Diaz of Carmona, Cavite, reads:

This is to certify that as per the
registry Records of Marriage filed in this
office, Marriage License No. 7054133
was issued in favor of
Mr. Restituto Alcantara and Miss
Rosita Almario on December 8, 1982.

This Certification is being issued
upon the request of Mrs. Rosita
A. Alcantara for whatever legal purpose
or intents it may serve.

This certification enjoys the presumption that
official duty has been regularly performed and the
issuance of the marriage license was done in the regular
conduct of official business.
The presumption of
regularity of official acts may be rebutted by affirmative
evidence of irregularity or failure to perform a
duty. However, the presumption prevails until it is
overcome by no less than clear and convincing evidence
to the contrary. Thus, unless the presumption is
rebutted, it becomes conclusive. Every reasonable
intendment will be made in support of the presumption
and, in case of doubt as to an officers act being lawful
or unlawful, construction should be in favor of its
Significantly, apart from these,
petitioner, by counsel, admitted that a marriage license
was, indeed, issued in Carmona, Cavite.

Petitioner, in a faint attempt to demolish the
probative value of the marriage license, claims that
neither he nor respondent is a resident
of Carmona, Cavite. Even then, we still hold that there
is no sufficient basis to annul petitioner and
respondents marriage. Issuance of a marriage license
in a city or municipality, not the residence of either of
the contracting parties, and issuance of a marriage
license despite the absence of publication or prior to
the completion of the 10-day period for publication are
considered mere irregularities that do not affect the
validity of the marriage.
An irregularity in any of the
formal requisites of marriage does not affect its validity
but the party or parties responsible for the irregularity
are civilly, criminally and administratively liable.

Again, petitioner harps on the discrepancy
between the marriage license number in the
certification of the Municipal Civil Registrar, which
states that the marriage license issued to the parties is
No. 7054133, while the marriage contract states that
the marriage license number of the parties is number
7054033. Once more, this argument fails to sway us. It
is not impossible to assume that the same is a mere a
typographical error, as a closer scrutiny of the marriage
contract reveals the overlapping of the numbers 0 and
1, such that the marriage license may read either as
7054133 or 7054033. It therefore does not detract
from our conclusion regarding the existence and
issuance of said marriage license to the parties.

Under the principle that he who comes to court
must come with clean hands,
petitioner cannot
pretend that he was not responsible or a party to the
marriage celebration which he now insists took place
without the requisite marriage license. Petitioner
admitted that the civil marriage took place because he
initiated it.
Petitioner is an educated person. He is
a mechanical engineer by profession. He knowingly and
voluntarily went to the Manila City Hall and likewise,
knowingly and voluntarily, went through a marriage
ceremony. He cannot benefit from his action and be
allowed to extricate himself from the marriage bond at
his mere say-so when the situation is no longer
palatable to his taste or suited to his lifestyle. We
cannot countenance such effrontery. His attempt to
make a mockery of the institution of marriage betrays
his bad faith.

Petitioner and respondent went through a
marriage ceremony twice in a span of less than one year
utilizing the same marriage license. There is no claim
that he went through the second wedding ceremony in
church under duress or with a gun to his
head. Everything was executed without nary a whimper
on the part of the petitioner.

In fact, for the second wedding of petitioner and
respondent, they presented to the San Jose
de Manuguit Church the marriage contract executed
during the previous wedding ceremony before
the Manila City Hall. This is confirmed in petitioners
testimony as follows


As I remember your honor, they
asked us to get the necessary
document prior to the wedding.


What particular document did
the church asked you to
produce? I am referring to the
San Jose de Manuguit church.


I dont remember your honor.


Were you asked by the church to
present a Marriage License?


I think they asked us for
documents and I said we have
already a Marriage Contract
and I dont know if it is good
enough for the marriage and
they accepted it your honor.


In other words, you represented
to the San Jose
de Manuguit church that you
have with you already a
Marriage Contract?


Yes your honor.


That is why the San Jose
de Manuguit church copied the
same marriage License in the
Marriage Contract issued which
Marriage License is Number


Yes your honor.

The logical conclusion is that petitioner was
amenable and a willing participant to all that took place
at that time. Obviously, the church ceremony was
confirmatory of their civil marriage, thereby cleansing
whatever irregularity or defect attended the civil

Likewise, the issue raised by petitioner -- that they
appeared before a fixer who arranged everything for
them and who facilitated the ceremony before a certain
Rev.Aquilino Navarro, a Minister of the Gospel of the
CDCC Br Chapel -- will not strengthen his posture. The
authority of the officer or clergyman shown to have
performed a marriage ceremony will be presumed in
the absence of any showing to the
Moreover, the solemnizing officer is not
duty-bound to investigate whether or not a marriage
license has been duly and regularly issued by the local
civil registrar. All the solemnizing officer needs to know
is that the license has been issued by the competent
official, and it may be presumed from the issuance of
the license that said official has fulfilled the duty to
ascertain whether the contracting parties had fulfilled
the requirements of law.

Semper praesumitur pro matrimonio. The
presumption is always in favor of the validity of the
Every intendment of the law or fact leans
toward the validity of the marriage bonds. The Courts
look upon this presumption with great favor. It is not to
be lightly repelled; on the contrary, the presumption is
of great weight.

WHEREFORE, premises considered, the instant
Petition is DENIED for lack of merit. The decision of the
Court of Appeals dated 30 September 2004 affirming
the decision of the Regional Trial Court, Branch 143
of Makati City, dated 14 February 2000,
are AFFIRMED. Costs against petitioner.


Associate Justice

Republic of the Philippines
G.R. No. L-48183 November 10, 1941
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
Cardenas & Casal for appellants.
Office of the Solicitor-General Ozaeta and Acting
Solicitor Luciano for appellee.
On March 16, 1926, the accused Rodolfo A.
Schneckenburger married the compliant Elena Ramirez
Cartagena and after seven years of martial life, they
agreed, for reason of alleged incompatibility of
character, to live separately each other and on May 25,
1935 they executed a document which in part recites as
Que ambos comparecientes convienen en vivir
separados el uno del otro por el resto de su vida
y se comprometen, y obligan reciprocamente a
no molastarse ni intervenir ni mezclarse bajo
ningun concepto en la vida publica o privada de
los mismos, entre si, quendado cada uno de los
otorgantes en completa libertad de accion en
calquier acto y todos concepto.
On June 15, 1935, the accused Schneckenburger,
without leaving the Philippines, secured a decree of
divorce from the civil court of Juarez, Bravos District,
State of Chihuahua, Mexico. On May 11, 1936, he
contracted another marriage with his co-accused, Julia
Medel, in the justice of the peace court of Malabon,
Rizal, and since then they lived together as husband and
wife in the city of Manila. Because of the nullity of the
divorce decreed by the Mexico Court, complaint herein
instituted two actions against the accused, one for
bigamy in the Court of First Instance of Rizal and the
other concubinage in the court of First Instance of
Manila. The first culminated in the conviction of the
accused for which he was sentenced to penalty of two
months and one day of arresto mayor. On the trial for
the offense of concubinage accused interposed the plea
of double jeopardy, and the case was dismissed; but,
upon appeal by the fiscal, this Court held the dismissal
before the trial to be premature this was under the
former procedure and without deciding the question of
double jeopardy, remanded the case to the trial court
for trial on the merits. Accused was convicted of
concubinage through reckless imprudence and
sentenced to a penalty of two months and one day
of arresto mayor. Hence this appeal.
As to appellant's plea of double jeopardy, it need only
be observed that the office of bigamy for which he was
convicted and that of concubinage for which he stood
trial in the court below are two distinct offenses in law
and in fact as well as in the mode of their prosecution.
The celebration of the second marriage, with the first
still existing, characterizes the crime of bigamy; on the
other hand, in the present case, mere cohabitation by
the husband with a woman who is not his wife
characterizes the crime of concubinage. The first in an
offense against civil status which may be prosecuted at
the instance of the state; the second, an offense against
chastity and may be prosecuted only at the instance of
the offended party. And no rule is more settled in law
than that, on the matter of double jeopardy, the test is
not whether the defendant has already been tried for
the same act, but whether he has been put in jeopardy
for the same offense. (Diaz v. U. S., 223 U. S., 422;
People v. Cabrera, 43 Phil., 82)
Upon the other hand, we believe and so hold that the
accused should be acquitted of the crime of
concubinage. The document executed by and between
the accused and the complaint in which they agreed to
be "en completa libertad de accion en cualquier acto y
en todos conceptos," while illegal for the purpose for
which it was executed, constitutes nevertheless a valid
consent to the act of concubinage within the meaning
of section 344 of the Revised Penal Code. There can be
no doubt that by such agreement, each party clearly
intended to forego to illicit acts of the other.
We said before (People vs. Guinucod, 58 Phil., 621) that
the consent which bars the offended party from
instituting a criminal prosecution in cases of adultery,
concubinage, seduction, abduction, rape and acts of
lasciviousness is that which has been given expressly or
impliedly after the crime has been committed. We are
now convinced that this is a narrow view in way
warranted by the language, as well as the manifest
policy, of the law. The second paragraph of article 344
of the Revised Penal Code provides:
The offended party cannot institute criminal
prosecution without including both the guilty
parties, if they are both alive, nor, in any case, if
he shall have consented or pardoned the
offenders. (Emphasis ours.)
As the term "pardon" unquestionably refers to the
offense after its commission, "consent" must have been
intended agreeably with its ordinary usage, to refer to
the offense prior to its commission. No logical
difference can indeed be perceived between prior and
subsequent consent, for in both instances as the
offended party has chosen to compromise with his/her
dishonor, he/she becomes unworthy to come to court
and invoke its aid in the vindication of the wrong. For
instance, a husband who believers his wife another man
for adultery, is as unworthy, if not more, as where,
upon acquiring knowledge of the adultery after its
commission, he says or does nothing. We, therefore,
hold that the prior consent is as effective as subsequent
consent to bar the offended party from prosecuting the
In this arriving at this conclusion we do not with to be
misconstrued as legalizing an agreement to do an illicit
act, in violation of law. Our view must be taken only to
mean that an agreement of the tenor entered into
between the parties herein, operates, within the plain
language and manifest policy of the law, to bar the
offended party from prosecuting the offense. If there is
anything morally condemnatory in a situation of his
character, the remedy lies not with us but with the
legislative department of the government. What the
law is, not what it should be, defines the limits of our
Judgment is reversed and the accused is hereby
acquitted, without costs.
Avancea, C.J., Abad Santos, Diaz and Horilleno,
JJ., concur.

Republic of the Philippines
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
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,
all surnamed "Escao,"

The facts, supported by the evidence of record, are the
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
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. "1-
Escao"), 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.
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
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
The actual authority of the solemnizing officer was thus
only a formal requirement, and, therefore, not essential
to give the marriage civil effects,
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
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.
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
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
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,
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
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
(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.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon,
Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

The latter was substituted by her heirs when
she died during the pendency of the case in the
trial court.
The original complaint included the Roman
Catholic Church as a defendant, sought to be
enjoined from acting on a petition for the
ecclesiastical annulment of the marriage
between Pastor Tenchavez and Vicenta Escao;
the case against the defendant Church was
dismissed on a joint motion.
In the present Civil Code the contrary rule
obtains (Art. 53).
She was naturalized as an American citizen
only on 8 August 1958.
Republic of the Philippines

G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute
MACARIO LAPUZ, petitioner-appellant,
UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440,
for review by certiorari of an order, dated 29 July 1969,
of the Juvenile and Domestic Relations Court of Manila,
in its Civil Case No. 20387, dismissing said case for legal
separation on the ground that the death of the therein
plaintiff, Carmen O. Lapuz Sy, which occurred during the
pendency of the case, abated the cause of action as well
as the action itself. The dismissal order was issued over
the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition
for legal separation against Eufemio S. Eufemio,
alleging, in the main, that they were married civilly on
21 September 1934 and canonically on 30 September
1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned
her; that they had no child; that they acquired
properties during their marriage; and that she
discovered her husband cohabiting with a Chinese
woman named Go Hiok at 1319 Sisa Street, Manila, on
or about March 1949. She prayed for the issuance of a
decree of legal separation, which, among others, would
order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein
respondent Eufemio S. Eufemio alleged affirmative and
special defenses, and, along with several other claims
involving money and other properties, counter-claimed
for the declaration of nullity ab initio of his marriage
with Carmen O. Lapuz Sy, on the ground of his prior and
subsisting marriage, celebrated according to Chinese
law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But before
the trial could be completed (the respondent was
already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died
in a vehicular accident on 31 May 1969. Counsel for
petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss
the "petition for legal separation"
on two (2) grounds,
namely: that the petition for legal separation was filed
beyond the one-year period provided for in Article 102
of the Civil Code; and that the death of Carmen abated
the action for legal separation.
On 26 June 1969, counsel for deceased petitioner
moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed
the motion.
On 29 July 1969, the court issued the order under
review, dismissing the case.
In the body of the order,
the court stated that the motion to dismiss and the
motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of
action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the
motion was denied on 15 September 1969.
After first securing an extension of time to file a petition
for review of the order of dismissal issued by the
juvenile and domestic relations court, the petitioner
filed the present petition on 14 October 1969. The same
was given due course and answer thereto was filed by
respondent, who prayed for the affirmance of the said

Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not
pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims by
praying for the affirmance of the order that dismissed
not only the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz marriage to
be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-
assumed substitute for the lower court did not act on
the motion for substitution) stated the principal issue to
be as follows:
When an action for legal separation is
converted by the counterclaim into one
for a declaration of nullity of a
marriage, does the death of a party
abate the proceedings?
The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to one
for declaration of nullity of a marriage, which is without
basis, for even petitioner asserted that "the respondent
has acquiesced to the dismissal of his counterclaim"
(Petitioner's Brief, page 22). Not only this. The petition
for legal separation and the counterclaim to declare the
nullity of the self same marriage can stand independent
and separate adjudication. They are not inseparable nor
was the action for legal separation converted into one
for a declaration of nullity by the counterclaim, for legal
separation pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-
The first real issue in this case is: Does the death of the
plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will abatement
also apply if the action involves property rights? .
An action for legal separation which involves nothing
more than the bed-and-board separation of the spouses
(there being no absolute divorce in this jurisdiction) is
purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the
innocent spouse (and no one else) to claim legal
separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal
separation already rendered. Being personal in
character, it follows that the death of one party to the
action causes the death of the action itself actio
personalis moritur cum persona.
... When one of the spouses is dead,
there is no need for divorce, because
the marriage is dissolved. The heirs
cannot even continue the suit, if the
death of the spouse takes place during
the course of the suit (Article 244,
Section 3). The action is absolutely dead
(Cass., July 27, 1871, D. 71. 1. 81; Cass.
req., May 8, 1933, D. H. 1933, 332.")
Marriage is a personal relation or
status, created under the sanction of
law, and an action for divorce is a
proceeding brought for the purpose of
effecting a dissolution of that relation.
The action is one of a personal nature.
In the absence of a statute to the
contrary, the death of one of the
parties to such action abates the action,
for the reason that death has settled
the question of separation beyond all
controversy and deprived the court of
jurisdiction, both over the persons of
the parties to the action and of the
subject-matter of the action itself. For
this reason the courts are almost
unanimous in holding that the death of
either party to a divorce proceeding,
before final decree, abates the action. 1
Corpus Juris, 208; Wren v. Moss, 2
Gilman, 72; Danforth v. Danforth, 111
Ill. 236; Matter of Grandall, 196 N.Y.
127, 89 N.E. 578; 134 Am St. Rep. 830;
17 Ann. Cas. 874; Wilcon v. Wilson, 73
Mich, 620, 41 N.W. 817; Strickland v.
Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley v. McCurley, 60 Md. 185, 45
Am. Rep. 717; Begbie v. Begbie, 128 Cal.
155, 60 Pac. 667, 49 L.R.A. 141.

The same rule is true of causes of action and suits for
separation and maintenance (Johnson vs. Bates, Ark.
101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations
between spouses shows that they are solely the effect
of the decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil Code
provides: .
Art. 106. The decree of legal separation
shall have the following effects:
(1) The spouses shall be entitled to live
separately from each other, but the
marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or
the absolute conjugal community of
property shall be dissolved and
liquidated, but the offending spouse
shall have no right to any share of the
profits earned by the partnership or
community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children
shall be awarded to the innocent
spouse, unless otherwise directed by
the court in the interest of said minors,
for whom said court may appoint a
(4) The offending spouse shall be
disqualified from inheriting from the
innocent spouse by intestate
succession. Moreover, provisions in
favor of the offending spouse made in
the will of the innocent one shall be
revoked by operation of law.
From this article it is apparent that the right to the
dissolution of the conjugal partnership of gains (or of
the absolute community of property), the loss of right
by the offending spouse to any share of the profits
earned by the partnership or community, or his
disqualification to inherit by intestacy from the innocent
spouse as well as the revocation of testamentary
provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the
very terms of the Civil Code article, are vested
exclusively in the persons of the spouses; and by their
nature and intent, such claims and disabilities are
difficult to conceive as assignable or transmissible.
Hence, a claim to said rights is not a claim that "is not
thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the
deceased party.
Sec. 17. Death of party. After a party
dies and the claim is not thereby
extinguished, the court shall order,
upon proper notice, the legal
representative of the deceased to
appear and to be substituted for the
deceased, within a period of thirty (30)
days, or within such time as may be
The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised
Rules of Court:
SECTION 1. Actions which may and
which may not be brought against
executor or administrator. No action
upon a claim for the recovery of money
or debt or interest thereon shall be
commenced against the executor or
administrator; but actions to recover
real or personal property, or an interest
therein, from the estate, or to enforce a
lien thereon, and actions to recover
damages for an injury to person or
property, real or personal, may be
commenced against him.
Neither actions for legal separation or for annulment of
marriage can be deemed fairly included in the
A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere effects
of decree of separation, their source being the decree
itself; without the decree such rights do not come into
existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death
supervenes during the pendency of the action, no
decree can be forthcoming, death producing a more
radical and definitive separation; and the expected
consequential rights and claims would necessarily
remain unborn.
As to the petition of respondent-appellee Eufemio for a
declaration of nullity ab initio of his marriage to Carmen
Lapuz, it is apparent that such action became moot and
academic upon the death of the latter, and there could
be no further interest in continuing the same after her
demise, that automatically dissolved the questioned
union. Any property rights acquired by either party as a
result of Article 144 of the Civil Code of the Philippines 6
could be resolved and determined in a proper action for
partition by either the appellee or by the heirs of the
In fact, even if the bigamous marriage had not been
void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having
been an absentee for seven consecutive years, or when
she had been generally believed dead, still the action
for annulment became extinguished as soon as one of
the three persons involved had died, as provided in
Article 87, paragraph 2, of the Code, requiring that the
action for annulment should be brought during the
lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership
that might have resulted from such voidable marriage
must be carried out "in the testate or intestate
proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in
the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila
Court of Juvenile and Domestic Relations is hereby
affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando,
Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

1 Per Annex "G" to Petition, rollo, pages
96-98, being the motion to dismiss.
2 Per Annex "I" to Petition, rollo, pages
132-137, being the order of dismissal.
3 Answer, rollo, pages 174-182.
4 Planiol, Civil Law Treatise, Vol. 1, Part
1, pages 658-659.
5 Bushnell v. Cooper, 124 N. E. 521,
6 "Art. 144. When a man and a woman
live together as husband and wife, but
they are not married, or that marriage
is void from the beginning, the property
acquired by either or both of them
through their work or industry or their
wages and salaries shall be governed by
the rules on co-ownership."
Republic of the Philippines
G.R. No. L-49542 September 12, 1980
MEJIAS, respondents.

This petition for review seeks to set aside the decision
of the Court of Appeals in CA-G.R. No. 54618-R which
reversed the decision of the Court of First Instance of
Davao, Branch IX dismissing the action for recognition
and support filed by respondent Elizabeth Mejias
against petitioner Antonio Macadangdang, and which
found minor Rolando to be the illegitimate son of
petitioner who was ordered to give a monthly support
of P350.00 until his alleged son reaches the age of
majority (p. 47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a
married woman, her husband being Crispin Anahaw
(pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for
Respondent [P. 198, rec.]) She allegedly had intercourse
with petitioner Antonio Macadangdang sometime in
March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109).
She also alleges that due to the affair, she and her
husband separated in 1967 (p. 63, t.s.n., Sept. 21,
1972). On October 30, 1967 (7 months or 210 days
following the illicit encounter), she gave birth to a baby
boy who was named Rolando Macadangdang in
baptismal rites held on December 24,1967 (Annex "A",
List of Exhibits).
The records also disclose that on April 25, 1972,
respondent (then plaintiff) filed a complaint for
recognition and support against petitioner (then
defendant) with the Court of First Instance of Davao,
Branch IX. This case was docketed as Civil Case No. 263
(p. 1, ROA).
Defendant (now petitioner) Macadangdang filed his
answer on June 30, 1972, opposing plaintiff's claim and
praying for its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial
conference, issued a Pre-trial Order formalizing certain
stipulations, admissions and factual issues on which
both parties agreed (pp. 4, 5, and 6, ROA).
Correspondingly, upon agreement of the parties, an
amended complaint was filed by plaintiff on October 17,
1972 (pp. 7,8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower
court dismissed the complaint,. The decision invoked
positive provisions of the Civil Code and Rules of Court
and authorities (pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to
the Court of Appeals (p. 59, In her appeal, appellant
assigned these errors:
1. The Honorable Trial Court erred in
applying in the instant case the
provisions of Arts. 255 and 256 of the
Civil Code and Secs. 4[a], 4[b] and 4[c],
Rule 131, of the Revised Rules of Court
(p. 18, rec.);
2. The Honorable Trial Court erred in
holding that plaintiff-appellant cannot
validly question the legitimacy of her
son, Rolando Macadangdang, by a
collateral attack without joining her
legal husband as a party in the instant
case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court
of Appeals reversed the lower court's decision (p. 47,
and thus declared minor Rolando to be an illegitimate
son of Antonio Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied
appellant's motions for reconsideration for lack of
merit. (p. 56, rec.).
Hence, petitioner filed this petition on January 12, 1979.
The issues boil down to:
1. Whether or not the child Rolando is
conclusively presumed the legitimate
issue of the spouses Elizabeth Mejias
and Crispin Anahaw; and
2. Whether or not the wife may
institute an action that would
bastardize her child without giving her
husband, the legally presumed father,
an opportunity to be heard.
The crucial point that should be emphasized and should
be straightened out from the very beginning is the fact
that respondent's initial illicit affair with petitioner
occurred sometime in March, 1967 and that by reason
thereof, she and her husband separated. This fact
surfaced from the testimony of respondent herself in
the hearing of September 21, 1972 when this case was
still in the lower court. The pertinent portions of her
testimony are thus quoted:
By Atty. Fernandez:
Q What did you feel as a
result of the incident where
Antonio Macadangdang used
pill and took advantage of your
A I felt worried,
mentally shocked and
Q If these feelings: worries,
mental shock and humiliation, if
estimated in monetary figures,
how much win be the amount?
A Ten thousand
pesos, sir.
Q And because of
the incidental what
happened to your with
Crispin Anahaw.
xxx xxx xxx
A We separate, sir. (pp. 61-
63, T.s.n., Civil Case No. 263,
Sept. 21, 1972; emphasis
From the foregoing line of questions and answers, it can
be gleaned that respondent's answers were given with
spontaneity and with a clear understanding of the
questions posed. There cannot be any other meaning or
interpretation of the word "incident" other than that of
the initial contact between petitioner and respondent.
Even a layman would understand the clear sense of the
question posed before respondent and her categorical
and spontaneous answer which does not leave any
room for interpretation. It must be noted that the very
question of her counsel conveys the assumption of an
existing between respondent and her husband.
The finding of the Court of Appeals that respondent and
her husband were separated in 1965 cannot therefore
be considered conclusive and binding on this Court. It is
based solely on the testimony of respondent which is
self-serving. Nothing in the records shows that her
statement was confirmed or corroborated by another
witness and the same cannot be treated as borne out
by the record or that which is based on substantial
evidence. It is not even confirmed by her own husband,
who was not impleaded.
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA
167 [1974], this Court restated that the findings of facts
of the Court of Appeals are conclusive on the parties
and on the Supreme Court, unless (1) the conclusion is a
finding grounded entirely on speculation, surmise, and
conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; (5) the
Court of Appeals went beyond the issues of the case
and its findings are contrary to the admission of both
appellant and appellee; (6) the findings of facts of the
Court of Appeals are contrary to those of the trial
court; (7) said findings of facts are conclusions without
citation of specific evidence on which they are based;
(8) the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by
the respondent; and (9) when the finding of facts of the
Court of Appeals is premised on the absence of
evidence and is contradicted by evidence on
record [Pioneer Insurance and Surety Corporation vs.
Yap, L-36232, December 19, 1974; Roque vs. Buan, L-
22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola
Bottling Company of the Philippines, L-225533, 19 SCRA
289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court reiterated
the aforestated doctrine adding four more exceptions
to the general rule. This case invoked the same ruling in
the previous case of Ramos vs. Pepsi-Cola Bottling
Company, etc., supra.
In the recent case of Francisca Alsua-Betts, et al. vs.
Court of Appeals, et al. (L-46430-31, July 30, 1979),
which petitioner aptly invokes, this Court thus
... But what should not be ignored by
lawyers and litigants alike is the more
basic principle that the "findings of fact"
described as "final" or "conclusive" are
those borne out by the record or those
which are based upon substantial
evidence. The general rule laid down by
the Supreme Court does not declare the
absolute correctness of all the findings
of fact made by the Court of Appeals.
There are exceptions to the general
rule, where we have reviewed the
findings of fact of the Court of Appeals
... (emphasis supplied).
The following provisions of the Civil Code and the Rules
of Court should be borne in mind:
Art. 255. Children born after one
hundred and eighty days following the
celebration of the marriage, and before
three hundred days following its
dissolution or the separation of the
spouses shall be presumed to be
Against this presumption, no evidence
shall be admitted other than that of the
physical impossibility of the husband's
having access to his wife within the first
one hundred and twenty days of the
three hundred which preceded the
birth of the child.
This physical impossibility may be
(1) By the impotence of the husband;
(2) By the fact that the husband and
wife were separately, in such a way that
access was not possible;
(3) By the serious illness of the
Art. 256. The child shall be presumed
legitimate, although the mother may
have declared against its legitimacy or
may have been sentenced as an
Art. 257. Should the wife commit
adultery at or about the time of the
conception of the child, but there was
no physical impossibility of access
between her and her husband as set
forth in article 255, the child is prima
facie presumed to be illegitimate if it
appears highly improbable, for ethnic
reasons, that the child is that of the
husband. For the purposes of this
article, the wife's adultery need not be
proved in a criminal case.
xxx xxx xxx
Sec. 4. Quasi-conclusive presumptions
of legitimacy
(a) Children born after one hundred
eighty days following the celebration of
the marriage, and before three hundred
days following its dissolution or the
separation of the spouses shall be
presumed legitimate.
Against presumption no evidence be
admitted other than that of the physical
impossibility of the husband's having
access to his wife within the first one
hundred and twenty days of the three
hundred which preceded the birth of
the child.
This physical impossibility may be
[1] By the impotence of the husband
[2] By the fact that the husband and the
wife were living separately, in such a
way that access was not possible;
[3] By the serious illness of the
(b) The child shall be presumed
legitimate although the mother may
have declared against its legitimacy or
may have been sentenced as an
(c) Should the wife commit adultery at
or about the time of the conception of
the child, but there was no physical
impossibility of access between her and
her husband as set forth above, the
child is presumed legitimate, unless it
appears highly improbable, for ethnic
reasons, that the child is that of the
husband. For the purpose of the rule,
the wife's adultery need not be proved
in a criminal case. ... (Rule 131, Rules of
Whether or not respondent and her husband were
separated would be immaterial to the resolution of the
status of the child Rolando. What should really matter is
the fact that during the initial one hundred twenty days
of the three hundred which preceded the birth of the
renamed child, no concrete or even substantial proof
was presented to establish physical impossibility of
access between respondent and her spouse. From her
very revealing testimony, respondent declared that she
was bringing two sacks of rice to Samal for her children;
that her four children by her husband in her mother's
house in the said town; that her alleged estranged
husband also lived in her mother's place (p. 73, pp. 21 &
22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be
noted that even during her affair with petitioner and
right after her delivery, respondent went to her
mother's house in Samal for treatment. Thus, in the
direct examination of Patrocinia Avila (the boy's yaya),
the following came out:
Q Why were you
taking care of the child
Rolando, where was
Elizabeth Mejias?
A Because Elizabeth went to
her parents in Same Davao del
Norte for treatment because
she had a relapse (p. 13, t.s.n.,
of Sept. 21, 1972).
From the foregoing and since respondent and her
husband continued to live in the same province, the fact
remains that there was always the possibility of access
to each other. As has already been pointed out,
respondent's self-serving statements were never
corroborated nor confirmed by any other evidence,
more particularly that of her husband.
The baby boy subject of this controversy was born on
October 30, 1967, only seven (7) months after March,
1967 when the "incident" or first illicit intercourse
between respondent and petitioner took place, and
also, seven months from their separation (if there really
was a separation). It must be noted that as of March,
1967, respondent and Crispin Anahaw had already four
children; hence, they had been married years before
such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of
Rolando came more than one hundred eighty 180 days
following the celebration of the said marriage and
before 300 days following the alleged separation
between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the
child Rolando is conclusively presumed to be the
legitimate son of respondent and her husband.
The fact that the child was born a mere seven (7)
months after the initial sexual contact between
petitioner and respondent is another proof that the said
child was not of petitioner since, from indications, he
came out as a normal full-term baby.
It must be stressed that the child under question has no
birth certificate of Baptism (attached in the List of
Exhibits) which was prepared in the absence of the
alleged father [petitioner]. Note again that he was born
on October 30, 1967. Between March, 1967 and
October 30, 1967, the time difference is clearly 7
months. The baby Rolando could have been born
prematurely. But such is not the case. Respondent
underwent a normal nine-month pregnancy.
Respondent herself and the yaya, Patrocinia Avila,
declared that the baby was born in the rented house at
Carpenter Street, which birth was obvisouly normal;
that he was such a healthy baby that barely 5 days after
his birth, he was already cared for by said yaya when
respondent became sick (pp. 28, 29 & 43, t.s.n., Sept.
21, 1972); and that when he was between 15 days and
2 months of age, respondent left him to the care of
theyaya when the former left for Samal for treatment
and returned only in February, 1968 (pp. 30-32, t.s.n.,
Sept. 21, 1972). From the aforestated facts, it can be
indubitably said that the child was a full-term baby at
birth, normally delivered, and raised normally by
the yaya. If it were otherwise or if he were born
prematurely, he would have needed special care like
being placed in an incubator in a clinic or hospital and
attended to by a physician, not just a mere yaya. These
all point to the fact that the baby who was born on
October 30, 1967 or 7 months from the first sexual
encounter between petitioner and respondent was
conceived as early as January, 1967. How then could he
be the child of petitioner?
In Our jurisprudence, this Court has been more definite
in its pronouncements on the value of baptismal
certificates. It thus ruled that while baptismal and
marriage certificates may be considered public
documents, they are evidence only to prove the
administration of the sacraments on the dates therein
specified but not the veracity of the states or
declarations made therein with respect to his kinsfolk
and/or citizenship (Paa vs. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus vs. Novero (L-22378,
23 SCRA 1331 [1968]), this Court held that a baptismal
administered, in conformity with the rites of the
Catholic Church by the priest who baptized the child,
but it does not prove the veracity of the declarations
and statements contained in the certificate that
concern the relationship of the person baptized. Such
declarations and statements, in order that their truth
may be admitted, must indispensably be shown by
proof recognized by law.
The child Rolando is presumed to be the legitimate son
of respondent and her spouse. This presumption
becomes conclusive in the absence of proof that there
was physical impossibility of access between the
spouses in the first 120 days of the 300 which preceded
the birth of the child. This presumption is actually quasi-
conclusive and may be rebutted or refuted by only one
evidence the physical impossibility of access between
husband and wife within the first 120 days of the 300
which preceded the birth of the child. This physical
impossibility of access may be caused by any of these:
1. Impotence of the husband;
2. Living separately in such a way that
access was impossible and
3. Serious illness of the husband.
This presumption of legitimacy is based on the
assumption that there is sexual union in marriage,
particularly during the period of conception. Hence,
proof of the physical impossibility of such sexual union
prevents the application of the presumption (Tolentino,
Commentaries & Jurisprudence on the Civil Code, Vol. 1,
p. 513 citing Bevilaqua, Familia p. 311).
The modern rule is that, in order to overthrow the
presumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access as could
have enabled the husband to be the father of the child.
Sexual intercourse is to be presumed where personal
access is not disproved, unless such presumption is
rebutted by evidence to the contrary; where sexual
intercourse is presumed or proved, the husband must
be taken to be the father of the child (Tolentino, citing
Madden, Persons and Domestic Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore,
there must be physical impossibility of access by the
husband to the wife during the period of conception.
The law expressly refers to physical impossibility.
Hence, a circumstance which makes sexual relations
improbable, cannot defeat the presumption of
legitimacy; but it may be proved as a circumstance to
corroborate proof of physical impossibility of access
(Tolentino, citing Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to
copulation, to perform its proper function (Bouvier's
Law Dictionary 514). As defined in the celebrated case
of Menciano vs. San Jose (89 Phil. 63), impotency is the
physical inability to have sexual intercourse. It is not
synonymous with sterility. Sterility refers to the inability
to procreate, whereas, impotence refers to the physical
inability to perform the act of sexual intercourse. In
respect of the impotency of the husband of the mother
of a child, to overcome the presumption of legitimacy
on conception or birth in wedlock or to show
illegitimacy, it has been held or recognized that the
evidence or proof must be clear or satisfactory: clear,
satisfactory and convincing, irresistible or positive (S.C.
Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182,
cited in 10 C.J.S. 50).
The separation between the spouses must be such as to
make sexual access impossible. This may take place
when they reside in different countries or provinces,
and they have never been together during the period of
conception (Estate of Benito Marcelo, 60 Phil. 442). Or,
the husband may be in prison during the period of
conception, unless it appears that sexual union took
place through corrupt violation of or allowed by prison
regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as
to exclude the possibility of his having sexual
intercourse with his wife; such as, when because of a
injury, he was placed in a plaster cast, and it was
inconceivable to have sexual intercourse without the
most severe pain (Tolentino, citing Commissioner vs.
Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the
illness produced temporary or permanent impotence,
making copulation impossible (Tolentino, citing Q.
Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165),
this Court ruled that just because tuberculosis is
advanced in a man does not necessarily mean that he is
incapable of sexual intercourse. There are cases where
persons suffering from tuberculosis can do the carnal
act even in the most crucial stage of health because
then they seemed to be more inclined to sexual
intercourse. The fact that the wife had illicit intercourse
with a man other than her husband during the initial
period, does not preclude cohabitation between said
husband and wife.
Significantly American courts have made definite
pronouncements or rulings on the issues under
consideration. The policy of the law is to confer
legitimacy upon children born in wedlock when access
of the husband at the time of conception was not
impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160
Misc. 830) and there is the presumption that a child so
born is the child of the husband and is legitimate even
though the wife was guilty of infidelity during the
possible period of conception (N.Y. Dieterich vs.
Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10
C.J.S., pp. 18,19 & 20).
So firm was this presumption originally that it cannot be
rebutted unless the husband was incapable of
procreation or was absent beyond the four seas, that is,
absent from the realm, during the whole period of the
wife's pregnancy (10 C.J.S. p. 20).
The presumption of legitimacy of children born during
wedlock obtains, notwithstanding the husband and wife
voluntarily separate and live apart, unless the contrary
is shown (Ala. Franks vs. State, 161 So. 549, 26 . App.
430) and this includes children born after the
separation [10 C.J.S. pp. 23 & 24; emphasis supplied].
It must be stressed that Article 256 of the Civil Code
which provides that the child is presumed legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress
has been adopted for two solid reasons. First, in a fit of
anger, or to arouse jealousy in the husband, the wife
may have made this declaration (Power vs. State, 95
N.E., 660). Second, the article is established as a
guaranty in favor of the children whose condition
should not be under the mercy of the passions of their
parents. The husband whose honor if offended, that is,
being aware of his wife's adultery, may obtain from the
guilty spouse by means of coercion, a confession against
the legitimacy of the child which may really be only a
confession of her guilt. Or the wife, out of vengeance
and spite, may declare the as not her husband's
although the statement be false. But there is another
reason which is more powerful, demanding the
exclusion of proof of confession or adultery, and it is,
that at the moment of conception, it cannot be
determined when a woman cohabits during the same
period with two men, by whom the child was begotten,
it being possible that it be the husband himself
(Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require
that a mother should not be permitted to assert the
illegitimacy of a child born in wedlock in order to obtain
some benefit for herself (N.Y. Flint vs. Pierce, 136
N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared
illegitimate to suit the whims and purposes of either
parent, nor Merely upon evidence that no actual act of
sexual intercourse occurred between husband and wife
at or about the time the wife became pregnant. Thus,
where the husband denies having any intercourse with
his wife, the child was still presumed legitimate (Lynn
vs. State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be
emphasized that adultery on the part of the wife, in
itself, cannot destroy the presumption of legitimacy of
her child, because it is still possible that the child is that
of the husband (Tolentino, citing 1 Vera 170; 4 Borja 23-
It has, therefore, been held that the admission of the
wife's testimony on the point would be unseemly and
scandalous, not only because it reveals immoral
conduct on her part, but also because of the effect it
may have on the child, who is in no fault, but who
nevertheless must be the chief sufferer thereby (7 Am.
Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock,
evidence of the infidelity or adultery of the wife and
mother is not admissible to show illegitimacy, if there is
no proof of the husband's impotency or non-access to
his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited
in 10 C.J.S. 36).
At this juncture, it must be pointed out that only the
husband can contest the legitimacy of a child born to his
wife. He is the one directly confronted with the scandal
and ridicule which the infidelity of his wife produces;
and he should decide whether to conceal that infidelity
or expose it, in view of the moral or economic interest
involved (Tolentino, citing Bevilaqua, Familia, p. 314).
The right to repudiate or contest the legitimacy of a
child born in wedlock belongs only to the alleged father,
who is the husband of the mother and can be exercised
only by him or his heirs, within a fixed time, and in
certain cases, and only in a direct suit brought for the
purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La.
731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10
C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because
maternity is never uncertain; she can only contest the
Identity of the child (La Eloi vs. Mader, 1 Rollo. 581,
38 Am. D. 192).
Formerly, declarations of a wife that her husband was
not the father of a child in wedlock were held to be
admissible in evidence; but the general rule now is that
they are inadmissible to bastardize the child, regardless
of statutory provisions obviating incompetency on the
ground of interest, or the fact that the conception was
antenuptial. The rule is said to be founded in decency,
morality and public policy (Wallace vs. Wallace 137
Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St.
Rep. 253,15 Ann. Cas. 761, Am. Jur. 26).
From the foregoing, particularly the testimony of
respondent and her witnesses, this Court has every
reason to believe that Crispin Anahaw was not actually
separated from Elizabeth Mejias; that he was a very
potent man, having had four children with his wife; that
even if he and were even separately (which the latter
failed to prove anyway) and assuming, for argument's
sake, that they were really separated, there was the
possibility of physical access to each other considering
their proximity to each other and considering further
that respondent still visited and recuperated in her
mother's house in Samal where her spouse resided with
her children. Moreover, Crispin Anahaw did not have
any serious illness or any illness whatsoever which
would have rendered him incapable of having sexual act
with his wife. No substantial evidence whatsoever was
brought out to negate the aforestated facts.
Crispin Anahaw served as a refuge after respondent's
reckless and immoral pursuits or a "buffer" after her
flings. And she deliberately did not include nor present
her husband in this case because she could not risk her
scheme. She had to be certain that such scheme to
bastardize her own son for her selfish motives would
not be thwarted.
This Court finds no other recourse except to deny
respondent's claim to declare her son Rolando the
illegitimate child of petitioner. From all indications,
respondent has paraded herself as a woman of highly
questionable character. A married woman who, on first
meeting, rides with a total stranger who is married
towards nightfall, sleeps in his house in the presence of
his children, then lives with him after their initial sexual
contact the atmosphere for which she herself
provided is patently immoral and hedonistic.
Although her husband was a very potent man, she
readily indulged in an instant illicit relationship with a
married man she had never known before.
Respondent had shown total lack of or genuine concern
for her child (Rolando) for, even after birth, she left him
in the care of a yaya for several months. This is not the
normal instinct and behavior of a mother who has the
safety and welfare of her child foremost in her mind.
The filing of this case itself shows how she is capable of
sacrificing the psycho-social future (reputation) of the
child in exchange for some monetary consideration.
This is blatant shamelessness.
It also appears that her claim against petitioner is a
disguised attempt to evade the responsibility and
consequence of her reckless behavior at the expense of
her husband, her illicit lover and above all her own
son. For this Court to allow, much less consent to, the
bastardization of respondent's son would give rise to
serious and far-reaching consequences on society. This
Court will not tolerate scheming married women who
would indulge in illicit affairs with married men and
then exploit the children born during such immoral
relations by using them to collect from such moneyed
paramours. This would be the form of wrecking the
stability of two families. This would be a severe assault
on morality.
And as between the paternity by the husband and the
paternity by the paramour, all the circumstances being
equal, the law is inclined to follow the former; hence,
the child is thus given the benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the
aforesaid principle when it provides thus:
Art. 220. In case of doubt, an
presumptions favor the solidarity of the
family. Thus, every of law or facts leans
toward the validity of marriage, the
indissolubility of the marriage bonds,
the legitimacy of children the
community of property during
marriage, the authority of parents over
their children, and the validity of
defense for any member of the family
in case of unlawful aggression.
Teehankee (Chairman), Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.

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