Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
SHARICA MARI L. GO-TAN
Petitioner,

G.R. No. 168852

Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

- versus -

SPOUSES PERFECTO C. TAN

and JUANITA L. TAN,
Promulgated:
Respondents.*
September 30, 2008
x----------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Resolution[1] dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in Civil
Case No. Q-05-54536 and the RTC Resolution[2] dated July 11, 2005 which denied petitioner's Verified
Motion for Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were married.[3] Out of
this union, two female children were born, KyraDanielle[4] and Kristen Denise.[5] On January 12, 2005,
barely six years into the marriage, petitioner filed a Petition with Prayer for the Issuance of a Temporary
Protective Order (TPO)[6] against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L.
Tan (respondents) before the RTC. She alleged that Steven, in conspiracy with respondents, were causing
verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)
(5), and (i)[7] of Republic Act (R.A.) No. 9262,[8] otherwise known as the Anti-Violence Against Women and
Their Children Act of 2004.

On January 25, 2005, the RTC issued an Order/Notice[9] granting petitioner's prayer for a TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of Permanent
Protection Order Ad Cautelam and Comment on the Petition,[10] contending that the RTC lacked
jurisdiction over their persons since, as parents-in-law of the petitioner, they were not covered by R.A. No.
9262.
On February 28, 2005, petitioner filed a Comment on Opposition [11] to respondents' Motion to Dismiss
arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed at
promoting the protection and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution [12] dismissing the case as to respondents on the ground
that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A.
No. 9262 under the well-known rule of law expressio unius est exclusio alterius.[13]
On March 16, 2005, petitioner filed her Verified Motion for Reconsideration [14] contending that the doctrine
of necessary implication should be applied in the broader interests of substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration [15] arguing
that petitioner's liberal construction unduly broadened the provisions of R.A. No. 9262 since the relationship
between the offender and the alleged victim was an essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution[16] denying petitioner's
Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the coverage of
R.A. No. 9262 would be a strained interpretation of the provisions of the law.
Hence, the present petition on a pure question of law, to wit:
WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA,
PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE
ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT
NO. 9262, OTHERWISE KNOWN AS THE ANTI-VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN ACT OF 2004.[17]
Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of
R.A. No. 9262 which explicitly provides for thesuppletory application of the Revised Penal Code (RPC)
2

and, accordingly, the provision on conspiracy under Article 8 of the RPC can be suppletorily applied to R.A.
No. 9262; that Steven and respondents had community of design and purpose in tormenting her by giving
her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically; that respondents should be included
as indispensable or necessary parties for complete resolution of the case.
On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3 thereof
explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a
dating or sexual relationship; that allegations on the conspiracy of respondents require a factual
determination which cannot be done by this Court in a petition for review; that respondents cannot be
characterized as indispensable or necessary parties, since their presence in the case is not only
unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders under Section 3 of
R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as any act or a series of
acts committed by any person against a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.
While the said provision provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of
conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal
Code and other applicable laws, shall have suppletory application. (Emphasis
supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which are
or in the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary. (Emphasis supplied)
3

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to
crimes punished under special laws, such as R.A. No.9262, in which the special law is silent on a particular
matter.
Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on subsidiary penalty under
Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the Revised Motor Vehicle
Law, noting that the special law did not contain any provision that the defendant could be sentenced with
subsidiary imprisonment in case of insolvency.
In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the service of sentences
provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations of R.A.
No. 6425, otherwise known as the Dangerous Drugs Act of 1972, considering the lack of similar rules
under the special law.
In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the
words principal, accomplices and accessories under R.A. No. 8042, otherwise known as the Migrant
Workers and Overseas Filipinos Act of 1995, because said words were not defined therein, although the
special law referred to the same terms in enumerating the persons liable for the crime of illegal recruitment.
In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary imprisonment under Article
39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the Bouncing Checks Law, noting
the absence of an express provision on subsidiary imprisonment in said special law.
Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle of conspiracy under
Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily
applicable, may be applied suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the

precise extent or modality of participation of each of them becomes secondary, since all the conspirators
are principals.[23]
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence
against women and their children may be committed by an offender through another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence
against women and their children is committed through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or
through another, that alarms or causes substantial emotional or psychological distress
to the woman or her child. This shall include, but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of
the woman or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)
In addition, the protection order that may be issued for the purpose of preventing further acts of violence
against the woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be issued under this Act
shall include any, some or all of the following reliefs:
(a) Prohibition of the respondent from threatening to commit or committing, personally
or through another, any of the acts mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or
otherwise communicating with the petitioner, directly or indirectly; x x x (Emphasis
supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be liberally construed to promote the protection
and safety of victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law [24] and that this intent must be effectuated by the
courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for
liberal construction as will best ensure the attainment of the object of the law according to its true intent,
meaning and spirit - the protection and safety of victims of violence against women and children.
Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius finds no
application here. It must be remembered that this maxim is only an ancillary rule of statutory construction. It
is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering
legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated
purpose of the legislature.[25]
The Court notes that petitioner unnecessarily argues at great length on the attendance of circumstances
evidencing the conspiracy or connivance of Steven and respondents to cause verbal, psychological and
economic abuses upon her. However, conspiracy is an evidentiary matter which should be threshed out in
a full-blown trial on the merits and cannot be determined in the present petition since this Court is not
a trier of facts.[26] It is thus premature for petitioner to argueevidentiary matters since this controversy is
centered only on the determination of whether respondents may be included in a petition under R.A. No.
9262. The presence or absence of conspiracy can be best passed upon after a trial on the merits.
Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A.
No. 9262, the Court will no longer delve on whether respondents may be considered indispensable or
necessary parties. To do so would be an exercise in superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7,
2005 and July 11, 2005 of the Regional Trial Court, Branch 94,Quezon City in Civil Case No. Q-0554536 are hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the petition
against respondents is concerned.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 106169 February 14, 1994

SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.
Leven S. Puno for petitioner.
Benigno M. Puno for private respondent.

CRUZ, J.:
The subject of this petition is the preliminary injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with this matter and not the merits of the case.
As a member of our diplomatic service assigned to different countries during his successive
tours of duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios
Gaviola-Sabalones, the administration of some of their conjugal, properties for fifteen years.
Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife
and their children. Four years later, he filed an action for judicial authorization to sell a building
and lot located at
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership.
He claimed that he was sixty-eight years old, very sick and living alone without any income, and
that his share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and
medical treatment.
In her answer, the private respondent opposed the authorization and filed a counterclaim for
legal separation. She alleged that the house in Greenhills was being occupied by her and their
7

six children and that they were depending for their support on the rentals from another conjugal
property, a building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also
informed the court that despite her husband's retirement, he had not returned to his legitimate
family and was instead maintaining a separate residence in Don Antonio Heights, Fairview,
Quezon City, with Thelma Cumareng and their three children.
In her prayer, she asked the court to grant the decree of legal separation and order the
liquidation of their conjugal properties, with forfeiture of her husband's share therein because of
his adultery. She also prayed that it enjoin the petitioner and his agents from a) disturbing the
occupants of the Forbes Park property and b) disposing of or encumbering any of the conjugal
properties.
After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous
marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his
retirement in 1985 at a separate residence. The court thus decreed the legal separation of the
spouses and the forfeiture of the petitioner's share in the conjugal properties, declaring as well
that he was not entitled to support from his respondent wife. 1
This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a
motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering
with the administration of their properties in Greenhills and Forbes Park. She alleged inter
alia that he had harassed the tenant of the Forbes Park property by informing him that his lease
would not be renewed. She also complained that the petitioner had disposed of one of their
valuable conjugal properties in the United States in favor of his paramour, to the prejudice of his
legitimate wife and children.
The petitioner opposed this motion and filed his own motion to prevent his wife from entering
into a new contract of lease over the Forbes Park property with its present tenant, or with future
tenants, without his consent.
After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary
injunction prayed for by his wife. 2
The petitioner now assails this order, arguing that since the law provides for a joint
administration of the conjugal properties by the husband and wife, no injunctive relief can be
issued against one or the other because no right will be violated. In support of this contention,
he cites Art. 124 of the Family Code, reading as follows:
Art. 124. The administration and enjoyment of the conjugal partnership property
shall belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the date of the contract
implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in

the administration of the conjugal properties, the other spouse may assume sole
powers of the administration. These powers do not include disposition or
encumbrance without authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed and the
third person, and may be perfected as a binding contract upon the acceptance by
the other spouse or the authorization by the court before the offer is withdrawn by
either or both offerors.
He further notes that the respondent court failed to appoint an administrator of the conjugal
assets as mandated by Art. 61 of the Code, thus:
Art. 61 After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community
or conjugal partnership property. The administrator appointed by the court shall
have the same powers and duties as those of a guardian under the Rules of
Court.
The Court has carefully considered the issues and the arguments of the parties and finds that
the petition has no merit.
We agree with the respondent court that pending the appointment of an administrator over the
whole mass of conjugal assets, the respondent court was justified in allowing the wife to
continue with her administration. It was also correct, taking into account the evidence adduced
at the hearing, in enjoining the petitioner from interfering with his wife's administration pending
resolution of the appeal.
The law does indeed grant to the spouses joint administration over the conjugal properties as
clearly provided in the above-cited Article 124 of the Family Code. However, Article 61, also
above quoted, states that after a petition for legal separation has been filed, the trial court shall,
in the absence of a written agreement between the couple, appoint either one of the spouses or
a third person to act as the administrator.
While it is true that no formal designation of the administrator has been made, such designation
was implicit in the decision of the trial court denying the petitioner any share in the conjugal
properties (and thus also disqualifying him as administrator thereof). That designation was in
effect approved by the Court of Appeals when it issued in favor of the respondent wife the
preliminary injunction now under challenge.

The primary purpose of the provisional remedy of injunction is to preserve the status quo of the
things subject of the action or the relations between the parties and thus protect the rights of the
plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may,
before final judgment, do or continue doing the act which the plaintiff asks the court to restrain
and thus make ineffectual the final judgment that may be rendered afterwards in favor of the
plaintiff. 3
As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford
relief against future acts which are against equity and good conscience and to keep and
preserve the thing in the status quo, rather than to remedy what is past or to punish for wrongful
acts already committed. It may issue to prevent future wrongs although no right has yet been
violated." 4
The Court notes that the wife has been administering the subject properties for almost nineteen
years now, apparently without complaint on the part of the petitioner. He has not alleged, much
less shown, that her administration has caused prejudice to the conjugal partnership. What he
merely suggests is that the lease of the Forbes Park property could be renewed on better terms,
or he should at least be given his share of the rentals.
In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her children of the income therefrom on which
they depend for their subsistence. She also testified the numerous . . . including various dollar
accounts, two houses in Quezon City and Cebu City, and a Mercedes Benz. The private
respondent also complained that on June 10, 1991, the petitioner executed a quitclaim over
their conjugal property in Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma
Cumareng, to improve his paramour's luxurious lifestyle to the prejudice of his legitimate family.
These allegations, none of which was refuted by the husband, show that the injunction is
necessary to protect the interests of the private respondent and her children and prevent the
dissipation of the conjugal assets.
The twin requirements of a valid injunction are the existence of a right and its actual or
threatened violation. 5Regardless of the outcome of the appeal, it cannot be denied that as the
petitioner's legitimate wife (and the complainant and injured spouse in the action for legal
separation), the private respondent has a right to a share (if not the whole) of the conjugal
estate. There is also, in our view, enough evidence to raise the apprehension that entrusting
said estate to the petitioner may result in its improvident disposition to the detriment of his wife
and children. We agree that inasmuch as the trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would be prudent not to allow him in the
meantime to participate in its management.
Let it be stressed that the injunction has not permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It has merely allowed her to continue
10

administering the properties in the meantime without interference from the petitioner, pending
the express designation of the administrator in accordance with Article 61 of the Family Code.
WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.
Davide, Jr., Bellosillo, Quiason and Kapunan, JJ, concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-30977 January 31, 1972

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

REYES J.B.L., J.:p

11

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" 1 on
two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year
period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the
action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by
her father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of
the order, the court stated that the motion to dismiss and the motion for substitution had to be
resolved on the question of whether or not the plaintiff's cause of action has survived, which the
court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on
15 September 1969.

12

After first securing an extension of time to file a petition for review of the order of dismissal
issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14
October 1969. The same was given due course and answer thereto was filed by respondent,
who prayed for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims,
he did not pursue them after the court below dismissed the case. He acquiesced in the
dismissal of said counterclaims by praying for the affirmance of the order that dismissed not
only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court
did not act on the motion for substitution) stated the principal issue to be as follows:
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-condition.
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.") 4 .
13

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. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson
vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are
solely the effect of the decree of legal separation; hence, they can not survive the death of the
plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of
property shall be dissolved and liquidated, but the offending spouse shall have
no right to any share of the profits earned by the partnership or community,
without prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom
said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of
gains (or of the absolute community of property), the loss of right by the offending spouse to any
share of the profits earned by the partnership or community, or his disqualification to inherit by
intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor
14

of the offending spouse made by the innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their
nature and intent, such claims and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after
a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the
action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor
or administrator. No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included
in the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their
source being the decree itself; without the decree such rights do not come into existence, so
that before the finality of a decree, these claims are merely rights in expectation. If death
supervenes during the pendency of the action, no decree can be forthcoming, death producing
a more radical and definitive separation; and the expected consequential rights and claims
would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his
marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the
death of the latter, and there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any property rights acquired by
either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and
determined in a proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article
83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the
first wife having been an absentee for seven consecutive years, or when she had been
generally believed dead, still the action for annulment became extinguished as soon as one of
15

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.

16

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20043

November 28, 1964

LOURDES RAMIREZ-CUADERNO, petitioner,

vs.
ANGEL CUADERNO, respondent.
R. L. Ramos and O. F. Disini for petitioner.
Severino C. Dominguez for respondent.
BARRERA, J.:
As a consequence of a complaint for support filed by Lourdes Ramirez-Cuaderno on August 14,
1957, against her husband Angel Cuaderno, the Juvenile and Domestic Relations Court, after
due hearing, rendered judgment ordering the latter to give the plaintiff-wife a monthly support of
P150.00, from the date of the filing of the complaint, plus attorney's fees, and to pay, the costs.
On appeal by the husband to the Court of Appeals, said decision was reversed and set aside
"so that (in the language of the court) appellant and appellee may again resume cohabitation
which they are hereby admonished to do as their duty as husband and wife." The wife filed the
instant petition for review of the aforesaid ruling of the Court of Appeals.
It has been established that the couple were living separately since November 17, 1956 when
the husband, after having inflicted bodily injuries on the wife in the course of a quarrel between
them, took her to her mother's house where the latter stayed until the institution of the claim for
support. The wife claimed maltreatment and abandonment by the husband as basis therefor,
whereas the husband, in resisting her demand for maintenance, contended that it was she who
left the conjugal dwelling and, consequently, is not entitled thereto.
The trial court, in granting the wife's demand, sustained the theory that she was driven out of
the dwelling or, at least prevented from returning thereto by reason of defendant's maltreatment.
The Court of Appeals, on the other hand, while adopting the findings of the Juvenile and
Domestic Relations Court as to the husband's role in the incident that led to the separation, and
notwithstanding the declaration by the husband during the hearing that "all the trouble she (the
wife) has given me is enough for me to turn my back to her," set aside the decision of the lower
court, on the ground that it believes that the conditions were such that cohabitation between the
spouses is not yet impossible. Thus, they were admonished to live together as husband and
wife.

17

We recognize the wisdom of the exhortation1 that in the interest of society, and perhaps of the
parties, courts should move, with caution in providing separate maintenance for the wife, a
situation which would be an acknowledgement of the de facto separation of the spouses.
However, it would be taking an unrealistic view for us to compel or urge them to live together
when, at least for the present, they specially the husband are speaking of impossibility of
cohabitation. For while marriage entitles both parties to cohabitation or consortium, the sanction
therefor is the spontaneous, mutual affection between husband and wife2 and not any legal
mandate or court order. This is due to the inherent characteristic and nature of marriage in this
jurisdiction.
In the instant case, it is not disputed that the infliction of physical injuries on the wife, by the
husband gave rise to their separation. It is likewise shown it was the husband who took his wife
to her parents' home where he left her. The fact that the wife allegedly accepted money from her
husband and desisted from accepting any later, because according to the latter, she was
demanding for more, only indicates that even before the filing of the present case, the
defendant-husband was already providing something for the separate maintenance.
Considering that the wife has no income of her own, while the husband has an employment, the
sum of P150.00 fixed by the trial court for the wife's monthly support does not seem to be
unreasonable. Needless to state that, as the separation has been brought about by the husband
and under the circumstances established during the trial, the same shall subsist until a different
situation between the parties shall take place.
WHEREFORE, the decision of the Court of Appeals is set aside and that of the Juvenile and
Domestic Relations Court is hereby revived, without costs. So ordered.

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FIRST DIVISION
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO,
JOHN DOE and JANE DOE, respondents.Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners,
vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal
bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may
not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which
the rightful custody of a person is withheld from the one entitled thereto.[2] Slx
"Habeas corpus is a writ directed to the person detaining another, commanding him to produce
the body of the prisoner at a designated time and place, with the day and cause of his capture
and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ
shall consider in that behalf."[3]
It is a high prerogative, common-law writ, of ancient origin, the great object of which is the
liberation of those who may be imprisoned without sufficient cause.[4] It is issued when one is
deprived of liberty or is wrongfully prevented from exercising legal custody over another person.
[5]

The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its
resolution[8] dismissing the application for habeas corpus to have the custody of her husband,
lawyer Potenciano Ilusorio and enforce consortium as the wife.
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On the other hand, the petition of Potenciano Ilusorio[9] is to annul that portion of the decision of
the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin
Erlinda and the Court of Appeals from enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions
of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President
of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived
together for a period of thirty (30) years. In 1972, they separated from bed and board for
undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when
he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City.
On the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55);
Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and
Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda
for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that
during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft,
an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence,
Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition[10] for
guardianship over the person and property of Potenciano Ilusorio due to the latters advanced
age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not
return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have
the custody of lawyer Potenciano Ilusorio. She alleged that respondents[11] refused petitioners
demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive
portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby
rendered:

20

"(1) Ordering, for humanitarian consideration and upon petitioners manifestation,

respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator
of Cleveland Condominium or anywhere in its place, his guards and Potenciano
Ilusorios staff especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding
any list limiting visitors thereof, under penalty of contempt in case of violation of
refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be recalled and
the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby
DISMISSED for lack of unlawful restraint or detention of the subject of the
petition.
"SO ORDERED."[12]
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or
detention,[13] or by which the rightful custody of a person is withheld from the one entitled
thereto. It is available where a person continues to be unlawfully denied of one or more of his
constitutional freedoms, where there is denial of due process, where the restraints are not
merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary.[14] It is devised as a speedy and effectual remedy to relieve persons from
unlawful restraint, as the best and only sufficient defense of personal freedom.[15] Jksm
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint, and to relieve a person therefrom if such restraint is illegal.[16]
To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary
deprivation of freedom of action.[17] The illegal restraint of liberty must be actual and effective,
not merely nominal or moral.[18]
The evidence shows that there was no actual and effective detention or deprivation of lawyer
Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render
him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but
on the capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his
liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the
administrator of the Cleveland Condominium not to allow his wife and other children from seeing
or visiting him. He made it clear that he did not object to seeing them.
21

As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of
sound and alert mind, having answered all the relevant questions to the satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the
crucial choices revolve on his residence and the people he opts to see or live with. The choices
he made may not appeal to some of his family members but these are choices which
exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not
prevented from leaving his house or seeing people. With that declaration, and absent any true
restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the
subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to
privacy. Needless to say, this will run against his fundamental constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights in a petition
for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent
with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that the same shall be
enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of
raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a
minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife
for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise
of his right.
No court is empowered as a judicial authority to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs
or by any other mesne process. That is a matter beyond judicial authority and is best left to the
man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No
costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of
Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs.
SO ORDERED.

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