[A.C. No. 3405.

June 29, 1998]

JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M.

NARAG, respondent.

DECISION
PER CURIAM:

Good moral character is a continuing qualification required of every member of the

bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the
Supreme Court may withdraw his or her privilege to practice law.
On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint [1] for
disbarment against her husband, Atty. Dominador M. Narag, whom she accused of
having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers. [2]
The complainant narrated:
The St. Louis College of Tuguegarao engaged the services of Atty.
Dominador M. Narag in the early seventies as a full-time college
instructor in the College of Arts and Sciences and as a professor in the
Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year
college student, enrolled in subjects handled by Atty. Narag. Exerting
his influence as her teacher, and as a prominent member of the legal
profession and then member of the Sangguniang Bayan of Tuguegarao,
Atty. Narag courted Ms. Espita, gradually lessening her resistance until
the student acceded to his wishes.
They then maintained an illicit relationship known in various circles in
the community, but which they managed to keep from me. It therefore
came as a terrible embar[r]assment to me, with unspeakable grief and
pain when my husband abandoned us, his family, to live with Ms.
Espita, in utterly scandalous circumstances.
It appears that Atty. Narag used his power and influence as a member
of the Sangguniang Panlalawigan of Cagayan to cause the employment
of Ms. Espita at the Department of Trade and Industry Central Office at
Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms.
Espita agreed to live with Atty. Narag, her sense of right[e]ousness and
morals completely corrupted by a member of the Bar.
 It is now a common knowledge in the community that Atty. Dominador
M. Narag has abandoned us, his family, to live with a 22-year-old
woman, who was his former student in the tertiary level[.][3]
This Court, in a Resolution dated December 18, 1989, referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[4]
On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from
complainant another letter seeking the dismissal of the administrative complaint. She
alleged therein that (1) she fabricated the allegations in her complaint to humiliate and
spite her husband; (2) all the love letters between the respondent and Gina Espita were
forgeries; and (3) she was suffering from emotional confusion arising from extreme
jealousy. The truth, she stated, was that her husband had remained a faithful and
responsible family man. She further asserted that he had neither entered into an amorous
relationship with one Gina Espita nor abandoned his family.[5] Supporting her letter were
an Affidavit of Desistance[6] and a Motion to Dismiss,[7] attached as Annexes A and B,
which she filed before the IBP commission on bar discipline.[8] In a Decision dated October
8, 1991, the IBP Board of Governors [9] dismissed the complaint of Mrs. Narag for failure
to prosecute.[10]
The case took an unexpected turn when, on November 25, 1991, this
Court[11] received another letter[12] from the complainant, with her seven children [13] as co-
signatories, again appealing for the disbarment of her husband. She explained that she
had earlier dropped the case against him because of his continuous threats against her. [14]
In his Comment on the complainants letter of November 11, 1991, filed in compliance
with this Courts Resolution issued on July 6, 1992,[15] respondent prayed that the decision
of the Board of Governors be affirmed. Denying that he had threatened, harassed or
intimidated his wife, he alleged that she had voluntarily executed her Affidavit of
Desistance[16] and Motion to Dismiss,[17]even appearing before the investigating officer,
Commissioner Racela, to testify under oath that she prepared the Motion to Dismiss and
Affidavit of Desistance on her own free will and affirmed the contents thereof.
In addition, he professed his love for his wife and his children and denied abandoning
his family to live with his paramour. However, he described his wife as a person
emotionally disturbed,viz.:
What is pitiable here is the fact that Complainant is an incurably jealous
and possessive woman, and every time the streak of jealousy rears its
head, she fires off letters or complaints against her husband in every
conceivable forum, all without basis, and purely on impulse, just to
satisfy the consuming demands of her loving jealousy. Then, as is her
nature, a few hours afterwards, when her jealousy cools off, she
repents and feels sorry for her acts against the Respondent. Thus,
when she wrote the Letter of November 11, 1991, she was then in the
grips of one of her bouts of jealousy.[18]
 On August 24, 1992, this Court issued another Resolution referring the Comment of
respondent to the IBP.[19] In the hearing before IBP Commissioner Plaridel C.
Jose, respondent alleged the following:[20]
2. Your Respondent comes from very poor parents who have left him
not even a square meter of land, but gave him the best legacy in life: a
purposeful and meaningful education.Complainant comes from what
she claims to be very rich parents who value material possession more
than education and the higher and nobler aspirations in
life. Complainant abhors the poor.
3. Your Respondent has a loving upbringing, nurtured in the gentle
ways of love, forgiveness, humility, and concern for the
poor. Complainant was reared and raised in an entirely different
environment. Her value system is the very opposite.
4. Your Respondent loves his family very dearly, and has done all he
could in thirty-eight (38) years of marriage to protect and preserve his
family. He gave his family sustenance, a comfortable home, love,
education, companionship, and most of all, a good and respected
name. He was always gentle and compassionate to his wife and
children. Even in the most trying times, he remained calm and never
inflicted violence on them. His children are all now full-fledged
professionals, mature, and gainfully employed. x x x

xxxxxxxxx

Your Respondent subscribes to the sanctity of marriage as a social

institution.
On the other hand, consumed by insane and unbearable jealousy,
Complainant has been systematically and unceasingly destroying the
very foundations of their marriage and their family.Their marriage has
become a torture chamber in which Your Respondent has been
incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED,
ABUSED, and HUMILIATED, physically, mentally, and emotionally, by
the Complainant, in public and at home. Their marriage has become a
nightmare.
For thirty-eight years, your Respondent suffered in silence and bore the
pain of his misfortune with dignity and with almost infinite patience, if
only to preserve their family and their marriage. But this is not to
be. The Complainant never mellowed and never became gentl[e],
 loving, and understanding. In fact, she became more fierce and
predatory.
Hence, at this point in time, the light at the tunnel for Your Respondent
does not seem in sight. The darkness continues to shroud the marital
and familial landscape.
Your Respondent has to undergo a catharsis, a liberation from
enslavement. Paraphrasing Dorfman in Death and the Maiden, can the
torturer and the tortured co-exist and live together?
Hence, faced with an absolutely uncomprehending and
uncompromising mind whose only obsession now is to destroy,
destroy, and destroy, Your Respondent, with perpetual regret and with
great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No.
566, RTC, Branch III, Tuguegarao, Cagayan. x x x.
5. Complainant is a violent husband-beater, vitriolic and unbending. But
your Respondent never revealed these destructive qualities to other
people. He preserved the good name and dignity of his wife. This is in
compliance with the marital vow to love, honor or obey your spouse, for
better or for worse, in sickness and in health. . . Even in this case, Your
Respondent never revealed anything derogatory to his wife. It is only
now that he is constrained to reveal all these things to defend himself.
On the other hand, for no reason at all, except a jealous rage,
Complainant tells everyone, everywhere, that her husband is worthless,
good-for-nothing, evil and immoral. She goes to colleges and
universities, professional organizations, religious societies, and all other
sectors of the community to tell them how evil, bad and immoral her
husband is. She tells them not to hire him as professor, as Counsel, or
any other capacity because her husband is evil, bad, and immoral. Is
this love? Since when did love become an instrument to destroy a
mans dearest possession in life - his good name, reputation and
dignity?
Because of Complainants virulent disinformation campaign against her
husband, employing every unethical and immoral means to attain his
ends, Your Respondent has been irreparably and irreversibly
disgraced, shamed, and humiliated. Your Respondent is not a
scandalous man. It is he who has been mercilessly scandalized and
crucified by the Complainant.[21]
To prove the alleged propensity of his wife to file false charges, respondent presented
as evidence the following list of the complaints she had filed against him and Gina Espita:
 3.1 Complaint for Immorality/Neglect of Duty x x x
3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No.
P-5-90. x x x
3.3 Complaint for Concubinage. Provincial Prosecutors Office of
Cagayan. I.S No. 89-114. x x x
3.4 Complaint for Anti-Graft and Corrupt Practices and
concubinage. OMBUDSMAN Case No. 1-92-0083. x x x
3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No.
4061. DISMISSED.
3.6 Complaint for Concubinage. Provincial Prosecutors Office of
Cagayan. I.S. No. 92-109. DISMISSED. (x x x). Complainant
filed Motion for Reconsideration. DENIED. (x x x).
3.7 Complaint for Disbarment (x x x) with S[upreme]
C[ourt]. Withdrawn (x x x). DISMISSED by IBP Board of
Governors (x x x). Re-instituted (x x x).
3.8 Complaint for Disbarment, again (x x x). Adm. Case No. 3405.
Pending.
3.9 Complaint for Concubinage, again (x x x). Third MCTC,
Tumauini, Isabela. Pending. x x x[22]
In his desperate effort to exculpate himself, he averred:
I. That all the alleged love letters and envelopes (x x x), picture (x x
x) are inadmissible in evidence as enunciated by the Supreme
Court in Cecilia Zulueta vs. Court of Appeals, et. al., G.R. No.
107383, February 20, 1996. (x x x).
xxxxxxxxx
II. That respondent is totally innocent of the charges: He never
courted Gina Espita in the Saint Louis College of Tuguegarao. He
never caused the employment of said woman in the DTI. He never
had or is having any illicit relationship with her anywhere, at any
time. He never lived with her as husband and wife anywhere at any
time, be it in Centro Tumauini or any of its barangays, or in any
other place. He never begot a child or children with her. Finally,
respondent submits that all the other allegations of Mrs. Narag are
false and fabricated, x x x
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III. Respondent never abandoned his family[.] Mrs. Narag and her
two sons forcibly drove respondent Narag out of the conjugal home.
After that, Atty. Narag tried to return to the conjugal home many
times with the help of mutual friends to save the marriage and the
 family from collapse. He tried several times to reconcile with Mrs.
Narag. In fact, in one of the hearings of the disbarment case, he
offered to return home and to reconcile with Mrs. Narag. But Mrs.
Narag refused all these efforts of respondent Narag. x x x
IV. Complainant Julieta B. Narag is an unbearably jealous, violent,
vindictive, scandalous, virulent and merciless wife since the
beginning of the marriage, who incessantly beat, battered,
brutalized, tortured, abuse[d], scandalized, and humiliated
respondent Atty. Narag, physically, mentally, emotionally, and
psychologically, x x x.
V. Complainant Julieta Narags claim in her counter-manifestation
dated March 28, 1996, to the effect that the affidavit of Dominador
B. Narag, Jr., dated February 27, 1996 was obtained through force
and intimidation, is not true. Dominador, Jr., executed his affidavit
freely, voluntarily, and absolutely without force or intimidation, as
shown by the transcript of stenographic notes of the testimonies of
Respondent Atty. Narag and Tuguegarao MTC Judge Dominador
Garcia during the trial of Criminal Case No. 12439, People vs.
Dominador M. Narag, et. al., before the Tuguegarao MTC on May
3, 1996. x x x.
xxxxxxxxx
VI. Respondent Atty. Narag is now an old man - a senior citizen of
63 years - sickly, abandoned, disgraced, weakened and debilitated
by progressively degenerative gout and arthritis, and hardly able to
earn his own keep. His very physical, medical, psychological, and
economic conditions render him unfit and unable to do the things
attributed to him by the complainant. Please see the attached
medical certificates, x x x, among many other similar certificates
touching on the same ailments. Respondent is also suffering from
hypertension.[23]
On July 18, 1997, the investigating officer submitted his report,[24] recommending the
indefinite suspension of Atty. Narag from the practice of law. The material portions of said
report read as follows:
Culled from the voluminous documentary and testimonial evidence
submitted by the contending parties, two (2) issues are relevant for the
disposition of the case, namely:
 a) Whether there was indeed a commission of alleged
abandonment of respondents own family and [whether he
was] living with his paramour, Gina Espita;
b) Whether the denial under oath that his illegitimate
children with Gina Espita (Aurelle Dominic and Kyle
Dominador) as appearing on paragraph 1(g) of respondents
Comment vis-a-vis his handwritten love letters, the due
execution and contents of which, although he objected to
their admissibility for being allegedly forgeries, were never
denied by him on the witness stand much less presented
and offered proof to support otherwise.
Except for the testimonies of respondents witnesses whose testimonies
tend to depict the complaining wife, Mrs. Narag, as an incurably jealous
wife and possessive woman suffering everytime with streaks of
jealousy, respondent did not present himself on the witness stand to
testify and be cross-examined on his sworn comment; much less did he
present his alleged paramour, Gina Espita, to disprove the adulterous
relationship between him and their having begotten their illegitimate
children, namely: Aurelle Dominic N. Espita and Kyle Dominador N.
Espita. Worse, respondents denial that he is the father of the two is a
ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467).
Viewed from all the evidence presented, we find the respondent subject
to disciplinary action as a member of the legal profession.[25]
In its Resolution[26] issued on August 23, 1997, the IBP adopted and approved the
investigating commissioners recommendation for the indefinite suspension of the
respondent.[27]Subsequently, the complainant sought the disbarment of her husband in a
Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer
penalty and, in its Resolution dated November 30, 1997, denied respondents Motion for
Reconsideration.
After a careful scrutiny of the records of the proceedings and the evidence presented
by the parties, we find that the conduct of respondent warrants the imposition of the
penalty of disbarment.
The Code of Professional Responsibility provides:
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
CANON 7-- A lawyer shall at all times uphold the integrity and
dignity of the legal profession, and support the activities
of the Integrated Bar.
 Rule 7.03-- A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor should he,
whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.
Thus, good moral character is not only a condition precedent[28] to the practice of law,
but a continuing qualification for all members of the bar. Hence, when a lawyer is found
guilty of gross immoral conduct, he may be suspended or disbarred.[29]
Immoral conduct has been defined as that conduct which is so willful, flagrant, or
shameless as to show indifference to the opinion of good and respectable members of
the community.[30]Furthermore, such conduct must not only be immoral,
but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree [31] or committed under such
scandalous or revolting circumstances as to shock the common sense of decency. [32]
We explained in Barrientos vs. Daarol[33] that, as officers of the court, lawyers must
not only in fact be of good moral character but must also be seen to be of good moral
character and leading lives in accordance with the highest moral standards of the
community. More specifically, a member of the Bar and officer of the court is not only
required to refrain from adulterous relationships or the keeping of mistresses but must
also so behave himself as to avoid scandalizing the public by creating the belief that he
is flouting those moral standards.
Respondent Narag is accused of gross immorality for abandoning his family in order
to live with Gina Espita. The burden of proof rests upon the complainant, and the Court
will exercise its disciplinary power only if she establishes her case by clear, convincing
and satisfactory evidence.[34]
Presented by complainant as witnesses, aside from herself,[35] were: Charlie
Espita,[36] Magdalena Bautista,[37] Bienvenido Eugenio,[38] Alice Carag,[39] Dr. Jervis B.
Narag,[40] Dominador Narag, Jr.,[41] and Nieves F. Reyes.[42]
Charlie Espita, brother of the alleged paramour Gina Espita, corroborated
complainants charge against respondent in these categorical statements he gave to the
investigating officer:
Q Mr. Witness, do you know Atty. Narag?
A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita.
Q If Atty. Narag is here, can you point [to] him?
A Yes, sir.
(Witness pointed to the respondent, Atty. Dominador Narag)
Q Why do you know Atty. Narag?
ATTY. NARAG:
Already answered. He said I am the live-in partner.
CONTINUATION OF THE DIRECT
 A Because he is the live-in partner of my sister and that they are now living together as
husband and wife and that they already have two children, Aurelle Dominic and Kyle
Dominador.
x x x x x x x x x [43]
During cross-examination conducted by the respondent himself, Charlie Espita
repeated his account that his sister Gina was living with the respondent, with whom she
had two children:
Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You
claim that?
A Yes, sir.
Q Why do you say that?
A Because at present you are living together as husband and wife and you have already two
children and I know that that is really an immoral act which you cannot just allow me to
follow since my moral values dont allow me that my sister is living with a married man like
you.
Q How do you know that Atty. Narag is living with your sister? Did you see them in the house?
A Yes, si[r].
xxxxxxxxx
Q You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle
Dominador, is it not?
A Yes, sir.
Q How do you know that they are the children of Atty. Narag?
A Because you are staying together in that house and you have left your family.[44]
In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the
love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade
him from appearing at the disbarment proceedings.[45]
Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this
wise:
Q Mr. Witness, do you know the respondent in this case?
A I know him very well, sir.
Q Could you please tell us why do you know him?
A Because he was always going to the house of my son-in-law by the name of Charlie Espita.
xxxxxxxxx
Q Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag?
A At that time, he [was] residing in the house of Reynaldo Angubong, sir.
Q And this is located where?
 A Centro Tamauini, Isabela, sir.
Q And you specifically, categorically state under oath that this is the residence of Atty. Narag?
A Yes, sir.
xxxxxxxxx
Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband
and wife, is it not?
A Yes, sir.[46]
Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that
she learned from the Narag children -- Randy, Bong and Rowena -- that their father left
his family, that she and her husband prodded the complainant to accept the respondent
back, that the Narag couple again separated when the respondent went back to his
woman, and that Atty. Narag had maltreated his wife.[47]
On the strength of the testimony of her witnesses, the complainant was able to
establish that respondent abandoned his family and lived with another woman. Absent
any evidence showing that these witnesses had an ill motive to testify falsely against the
respondent, their testimonies are deemed worthy of belief.
Further, the complainant presented as evidence the love letters that respondent had
sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two
children, whom he acknowledged as his own. In addition, complainant also submitted as
evidence the cards that she herself had received from him. Guided by the rule that
handwriting may be proved through a comparison of one set of writings with those
admitted or treated by the respondent as genuine, we affirm that the two sets of evidence
were written by one and the same person.[48] Besides, respondent did not present any
evidence to prove that the love letters were not really written by him; he merely denied
that he wrote them.
While the burden of proof is upon the complainant, respondent has the duty not only
to himself but also to the court to show that he is morally fit to remain a member of the
bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that
his right to continue practicing his cherished profession is imperiled, he must meet the
charges squarely and present evidence, to the satisfaction of the investigating body and
this Court, that he is morally fit to have his name in the Roll of Attorneys.[49] This he failed
to do.
Respondent adamantly denies abandoning his family to live with Gina Espita. At the
same time, he depicts his wife as a violent husband-beater, vitriolic and unbending, and
as an insanely and pathologically jealous woman, whose only obsession was to destroy,
destroy and destroy him as shown by her filing of a series of allegedly unfounded charges
against him (and Gina Espita).To prove his allegation, he presented ninety-eight (98)
pieces of documentary evidence[50] and ten (10) witnesses.[51]
We note, however, that the testimonies of the witnesses of respondent did not
establish the fact that he maintained that moral integrity required by the profession that
would render him fit to continue practicing law. Neither did their testimonies destroy the
fact, as proven by the complainant, that he had abandoned his family and lived with Gina
Espita, with whom he had two children.Some of them testified on matters which they had
no actual knowledge of, but merely relied on information from either respondent himself
or other people, while others were presented to impeach the good character of his wife.
Respondent may have provided well for his family -- they enjoyed a comfortable life
and his children finished their education. He may have also established himself as a
successful lawyer and a seasoned politician. But these accomplishments are not
sufficient to show his moral fitness to continue being a member of the noble profession of
law.
We remind respondent that parents have not only rights but also duties e.g., to
support, educate and instruct their children according to right precepts and good example;
and to give them love, companionship and understanding, as well as moral and spiritual
guidance.[52] As a husband, he is also obliged to live with his wife; to observe mutual love,
respect and fidelity; and to render help and support.[53]
Respondent himself admitted that his work required him to be often away from
home. But the evidence shows that he was away not only because of his work; instead,
he abandoned his family to live with his paramour, who bore him two children. It would
appear, then, that he was hardly in a position to be a good husband or a good father. His
children, who grew up mostly under the care of their mother, must have scarcely felt the
warmth of their fathers love.
Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral
frailties in his testimony:
Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault
that is so serious that it is incapable of forgiveness?
A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of
myself, I suppose I cannot forgive a person although I am a God-fearing person, but I
h[av]e to give the person a lesson in order for him or her to at least realize his mistakes,
sir.
xxxxxxxxx
COMR. JOSE:
I think it sounds like this. Assuming for the sake of argument that your father is the worst,
hardened criminal on earth, would you send him to jail and have him disbarred? That is
the question.
CONTINUATION.
A With the reputation that he had removed from us, I suppose he has to be given a lesson. At
this point in time, I might just forgive him if he will have to experience all the pains that we
have also suffered for quite sometime.
Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his
bones are your bones and you now disown him because he is the worst man on earth, is
that what you are saying.
A Sort of, sir.
 Q You are now telling that as far [as] you are concerned because your father has sinned, you
have no more father, am I correct?
A Long before, sir, I did not feel much from my father even when I was still a kid because my
father is not always staying with us at home. So, how can you say that? Yes, he gave me
life, why not? But for sure, sir, you did not give me love.[54]
Another son, Dominador Narag, Jr., narrated before the investigating officer the
trauma he went through:
Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is
maintaining a paramour, could you please tell this Honorable Commission the effect on
you?
A This has a very strong effect on me and this includes my brothers and sisters, especially my
married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted
ways. It hurts to say that I and my wife parted ways. This is one reason that affected us.
Q Will you please tell us specifically why you and your wife parted ways?
A Because my wife wa[s] ashamed of what happened to my family and that she could not face
the people, our community, especially because my wife belongs to a well-known family in
our community.
Q How about the effect on your brothers and sisters? Please tell us what are those.
A Well, sir, this has also affected the health of my elder sister because she knows so well that
my mother suffered so much and she kept on thinking about my mother.
xxxxxxxxx
Q Why did your wife leave you?
A The truth is because of the things that had happened in our family, Your Honor.
Q In your wifes family?
A In our family, sir.
Q And what do you mean by that?
A What I meant by that is my father had an illicit relationship and that my father went to the
extent of scolding my wife and calling my wife a puta in provincial government, which my
mother-in-law hated him so much for this, which really affected us. And then my wife knew
for a fact that my father has an illicit relationship with Gina Espita, whom he bore two
children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I
stand firm to this, Your Honor.[55]
Although respondent piously claims adherence to the sanctity of marriage, his acts
prove otherwise. A husband is not merely a man who has contracted marriage. Rather,
he is a partner who has solemnly sworn to love and respect his wife and remain faithful
to her until death.
We reiterate our ruling in Cordova vs. Cordova[56] The moral delinquency that affects
the fitness of a member of the bar to continue as such includes conduct that outrages the
generally accepted moral standards of the community, conduct for instance, which makes
a mockery of the inviolable social institution of marriage.
 In Toledo vs. Toledo,[57] the respondent was disbarred from the practice of law, when
he abandoned his lawful wife and cohabited with another woman who had borne him a
child.
Likewise, in Obusan vs. Obusan,[58] the respondent was disbarred after the
complainant proved that he had abandoned her and maintained an adulterous
relationship with a married woman.This Court declared that respondent failed to maintain
the highest degree of morality expected and required of a member of the bar.
In the present case, the complainant was able to establish, by clear and convincing
evidence, that respondent had breached the high and exacting moral standards set for
members of the law profession. As held in Maligsa vs. Cabanting,[59] a lawyer may be
disbarred for any misconduct, whether in his professional or private capacity, which
shows him to be wanting in moral character, in honesty, probity and good demeanor or
unworthy to continue as an officer of the court.
WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name
is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the
personal record of Respondent Narag; and furnished to all courts of the land, the
Integrated Bar of the Philippines, and the Office of the Bar Confidant.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

This is an action by the wife against her husband for support outside of the conjugal domicile. From a
judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint
do not state a cause of action, followed by an order dismissing the case after the plaintiff declined to
amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a
divorce or separation from the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter
established their residence at 115 Calle San Marcelino, where they lived together for about a month,
when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as
follows:

That the defendant, one month after he had contracted marriage with the plaintiff, demanded
of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff
spurned the obscene demands of the defendant and refused to perform any act other than legal
and valid cohabitation; that the defendant, since that date had continually on other successive
dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned
them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat
her by word and deed and inflict injuries upon her lips, her face and different parts of her body;
and that, as the plaintiff was unable by any means to induce the defendant to desist from his
repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode
and take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of
the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the
termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc
Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary
contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and
obligations of which rest not upon the agreement of the parties but upon the general law which defines
and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of
which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate
it at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this
relation, so long as it continues, are such as the law determines from time to time, and none other.
When the legal existence of the parties is merged into one by marriage, the new relation is regulated
and controlled by the state or government upon principles of public policy for the benefit of society as
well as the parties. And when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the community, relief in some
way should be obtainable. With these principles to guide us, we will inquire into the status of the law
touching and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3
Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were
extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705).
Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.

ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the
management of the wife's property.)
 ART. 48. The wife must obey her husband, live with him, and follow him when he charges his
domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve
her from this duty when the husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole extent
specified in the preceding article.

1. The consorts.

xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying
the pension that may be fixed or by receiving and maintaining in his own home the person
having the right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The
failure of the wife to live with her husband is not one of them.

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband
must live with and protect his wife. The wife must obey and live with her husband and follow him when
he changes his domicile or residence, except when he removes to a foreign country. But the husband
who is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving
and maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose
this option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code
absolute? The supreme court of Spain in its decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11,
1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person,
obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his
own house the party who is entitled to the same, is not so absolute as to prevent cases being
considered wherein, either because this right would be opposed to the exercise of a preferential
right or because of the existence of some justifiable cause morally opposed to the removal of
the party enjoying the maintenance, the right of selection must be understood as being thereby
restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether
there was any reason to prevent the exercise of the option granted by article 149 of the Civil
Code to the person obliged to furnish subsistence, to receive and maintain in his own house the
one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with
regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it
having been set forth that the natural father simply claims his child for the purpose of thus
better attending to her maintenance, no action having been taken by him toward providing the
 support until, owing to such negligence, the mother was obliged to demand it; it is seen that
these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it
would be difficult for the mother to maintain relations with her daughter, all constitute an
impediment of such a nature as to prevent the exercise of the option in the present case,
without prejudice to such decision as may be deemed proper with regard to the other questions
previously cited in respect to which no opinion should be expressed at this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein
the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted
that there existed a preexisting or preferential right in each of these cases which was opposed to the
removal of the one entitled to support. It is true that in the first the person claiming the option was the
natural father of the child and had married a woman other than the child's mother, and in the second
the right to support had already been established by a final judgment in a criminal case.
Notwithstanding these facts the two cases clearly established the proposition that the option given by
article 149 of the Civil Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses
and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her
property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in
accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving
himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this
civil action against his wife, who was then living in opulence, for support and the revocation of the
powers heretofore granted in reference to the administration and disposal of her property. In her
answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support
and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled
by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia
Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon the
merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of
the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually
obliged to provide each other with support, cannot but be subordinate to the other provisions
of said Code which regulates the family organization and the duties of spouses not legally
separated, among which duties are those of their living together and mutually helping each
other, as provided in article 56 of the aforementioned code; and taking this for granted, the
obligation of the spouse who has property to furnish support to the one who has no property
and is in need of it for subsistence, is to be understood as limited to the case where, in
accordance with law, their separation has been decreed, either temporarily or finally and this
case, with respect to the husband, cannot occur until a judgment of divorce is rendered, since,
until then, if he is culpable, he is not deprived of the management of his wife's property and of
the product of the other property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each other of their own free will,
thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a
legal status entirely incompatible with the nature and effects of marriage in disregard of the
 duties inherent therein and disturbing the unity of the family, in opposition to what the law, in
conformity with good morals, has established; and.

Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally
separated, it is their duty to live together and afford each other help and support; and for this
reason, it cannot be held that the former has need of support from his wife so that he may live
apart from her without the conjugal abode where it is his place to be, nor of her conferring
power upon him to dispose even of the fruits of her property in order therewith to pay the
matrimonial expenses and, consequently, those of his own support without need of going to his
wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso for
support, has not violated the articles of the Civil Code and the doctrine invoked in the
assignments of error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses
separated voluntarily in accordance with an agreement previously made. At least there are strong
indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it
would allow married persons to disregard the marriage bond and separate from each other of their own
free will." If this be the true basis upon which the supreme court of Spain rested its decision, then the
doctrine therein enunciated would not be controlling in cases where one of the spouses was compelled
to leave the conjugal abode by the other or where the husband voluntarily abandons such abode and
the wife seeks to force him to furnish support. That this is true appears from the decision of the same
high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her
husband who had willfully and voluntarily abandoned the conjugal abode without any cause whatever.
The supreme court, reversing the judgment absolving the defendant upon the ground that no action for
divorce, etc., had been instituted, said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal
abode, although he claims, without however proving his contention, that the person responsible
for this situation was his wife, as she turned him out of the house. From this state of affairs it
results that it is the wife who is party abandoned, the husband not having prosecuted any action
to keep her in his company and he therefore finds himself, as long as he consents to the
situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty
sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding,
the trial court, on the mistaken ground that for the fulfillment of this duty the situation or
relation of the spouses should be regulated in the manner it indicates, has made the errors of
law assigned in the first three grounds alleged, because the nature of the duty of affording
mutual support is compatible and enforcible in all situations, so long as the needy spouse does
not create any illicit situation of the court above described.lawphil.net

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case
under consideration, that neither spouse can be compelled to support the other outside of the conjugal
abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from
the other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason
that the substantive law is not in every particular the same here as it is in Spain. As we have already
stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine
Islands. The law governing the duties and obligations of husband and wife in this country are articles 44
to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the
part of the husband when public scandal or disgrace of the wife results therefrom; personal violence
actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force
her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the
husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption
or prostitution; and the condemnation of a spouse to perpetual chains or hard labor, while in this
jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This
positive and absolute doctrine was announced by this court in the case just cited after an exhaustive
examination of the entire subject. Although the case was appealed to the Supreme Court of the United
States and the judgment rendered by this court was there reversed, the reversal did not affect in any
way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the
decision was promulgated by this court in that case in December, 1903, no change or modification of the
rule has been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and sufficient
cause for living separate from her husband; and, consequently, if a court lacks power to decree a
divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The
weakness of this argument lies in the assumption that the power to grant support in a separate action is
dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent
from the very nature of the marital obligations of the spouses. The mere act of marriage creates an
obligation on the part of the husband to support his wife. This obligation is founded not so much on the
express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an
obligation, the enforcement of which is of such vital concern to the state itself that the laws will not
permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental
home. A judgment for separate maintenance is not due and payable either as damages or as a penalty;
nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of
a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to
preserve the public peace and the purity of the wife; as where the husband makes so base demands
upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a
decree for separate support is not an impeachment of that public policy by which marriage is regarded
as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and
except in so far only as such separation is tolerated as a means of preserving the public peace and
morals may be considered, it does not in any respect whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in
this case, rest.

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.

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

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

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu,
in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal
separation and one million pesos in damages against his wife and parents-in-law, the defendants-
appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where
she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a
well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"),
exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of
undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises
Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous
love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their
marital future whereby Pacita would be the governess of their first-born; they started saving money in a
piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned
the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she
pleaded for his return, and they reconciled. This time they planned to get married and then elope. To
facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St.
Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where
she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because
Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the
clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao
spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to
be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the
Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration
did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name
he claims he does not remember, a letter purportedly coming from San Carlos college students and
disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the
letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day
in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor
returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her
husband's welfare, was not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating with
Pastor (Exh. "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. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with
him in California, and, by him, has begotten children. She acquired American citizenship on 8 August
1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First
Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and
Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her
husband, and alienating her affections, and against the Roman Catholic Church, for having, through its
Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one
million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to
her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced
their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-
appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao
liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta
Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by
the record before us. Both parties were then above the age of majority, and otherwise qualified; and
both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in
the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized
under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the
time) expressly provided that

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not
essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act,
which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it was
performed, the spouses or one of them believed in good faith that the person who solemnized
the marriage was actually empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason,
60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and
the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for
annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was
valid and binding.

Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even
granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was
vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until annulled by a competent civil court. This was never
done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was
dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao
remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute
divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of
Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the
time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She
was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386),
already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons
are binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain absolute
divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident
consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her
previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of
her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an
anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate
excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court on the subject, particularly those that were
rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917,
when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute
divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings,
therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of
these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr.
Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in Switzerland until her death is
wholly without legal significance. The claims of the very children to participate in the estate of
 Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate,
legitimated and acknowledged natural children. The children of adulterous relations are wholly
excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted
to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo
Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the
proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine
law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not
new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written
by Legislature if they are constitutional. Courts have no right to say that such laws are too strict
or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the
late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward
her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the
Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by
Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp.
270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the
"great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity"
[sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing
to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as
good manners and breeding demanded. Even after learning of the clandestine marriage, and despite
their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage
be recelebrated in strict conformity with the canons of their religion upon advice that the previous one
was canonically defective. If no recelebration of the marriage ceremony was had it was not due to
defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the
spouses Escao did not seek to compel or induce their daughter to assent to the recelebration but
respected her decision, or that they abided by her resolve, does not constitute in law an alienation of
affections. Neither does the fact that Vicenta's parents sent her money while she was in the United
States; for it was natural that they should not wish their daughter to live in penury even if they did not
concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently, and
being of age, she was entitled to judge what was best for her and ask that her decisions be respected.
Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of
malice or unworthy motives, which have not been shown, good faith being always presumed until the
contrary is proved.
 SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a
parent to interest himself in the marital affairs of his child and the absence of rights in a stranger
to intermeddle in such affairs. However, such distinction between the liability of parents and
that of strangers is only in regard to what will justify interference. A parent isliable for alienation
of affections resulting from his own malicious conduct, as where he wrongfully entices his son or
daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without
justification and from unworthy motives. He is not liable where he acts and advises his child in
good faith with respect to his child's marital relations in the interest of his child as he sees it, the
marriage of his child not terminating his right and liberty to interest himself in, and be extremely
solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or
result in the separation of the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or interference are indiscreet or
unfortunate, although it has been held that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home and afford him or her protection
and support, so long as he has not maliciously enticed his child away, or does not maliciously
entice or cause him or her to stay away, from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married daughter, but it is equally applicable in the
case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and
with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused
them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled
by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances.
Court actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized
by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c)
that there is evidence that appellant had originally agreed to the annulment of the marriage, although
such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is
unable to remarry under our law, this fact is a consequence of the indissoluble character of the union
that appellant entered into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral
damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena
Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit
must have wounded said defendants' feelings and caused them anxiety, the same could in no way have
seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been correctly established in the decision of
the court below, is that said defendants were not guilty of any improper conduct in the whole
deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is
the marriage contracted with another party by the divorced consort, subsequently to the foreign decree
of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of
P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his
wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

[G.R. No. 29959. December 3, 1929.]

AURELIA DADIVAS DE VILLANUEVA, Plaintiff-Appellant, v. RAFAEL VILLANUEVA,Defendant-Appellee.

Harvey & OBrien, for Appellant.

Jose G. Generoso, for Appellee.

SYLLABUS

1. HUSBAND AND WIFE; INFIDELITY OF HUSBAND; SEPARATE MAINTENANCE FOR WIFE. In order to
entitle a wife to maintain a separate home and to require separate maintenance from her husband, it is
not necessary that the husband should bring a concubine into the marital domicile. Repeated illicit
relations with women outside of the marital establishment are enough. The law is not so unreasonable
as to require a wife to live in marital relations with a husband whose propensity towards other women
makes common habitation with him unbearable.

DECISION
 STREET, J.:

This action was instituted on May 27, 1927, in the Court of First Instance of the City of Manila by Aurelia
Dadivas de Villanueva against her husband, Rafael Villanueva, for the purpose of obtaining separate
maintenance and custody of the two younger minor children, Guillermo and Sergio Villanueva, as well as
a proper allowance for professional legal services rendered by the plaintiffs attorneys in this action, as
well as costs. Upon hearing the cause the trial court absolved the defendants from the complaint and
abrogated a prior order of the court for maintenance pendente lite, with costs against the plaintiff. From
this judgment the plaintiff appealed.

The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant, Rafael Villanueva, on July 16,
1905, in the City of Manila, where the pair have since resided. To them have been born three children,
namely, Antonio, Guillermo, and Sergio, who were, at the time of the trial of this case in the lower court,
aged respectively 18, 10 and 9 years. The grounds on which separate maintenance is sought are
infidelity and cruelty. With respect to the first of these charges the proof shows that during the period
of about ten years prior to the institution of the action, the defendant was guilty of repeated acts of
infidelity with four different women, and even after the action was begun, he is shown to have had illicit
relations with still another, an incident which is incorporated in the case by means of the amended
complaint. Though at all times protesting against these irregularities in her husbands conduct, the
plaintiff appears to have exhibited forbearance; and she long continued in marital relations with him
with a view to keeping the family intact as well as wit hope of retrieving him from his erring course. In
the end, however, the incorrigible nature of the defendant in his relations with other women, coupled
with a lack of consideration and even brutality towards the plaintiff, caused her to withdraw from the
domestic hearth and to establish a separate abode for herself and two younger children. This final
separation occurred on April 20, 1927, about one month before the present action was begun.

The proof with respect to the charge of cruelty shows that the defendant has not infrequently treated
the plaintiff roughly and that he has at times directed abusive words to her and challenged her to carry
her troubles into court. The proof in support of this charge does not in our opinion establish a case for
separate maintenance, without relation to the graver charge of conjugal infidelity; and if the case
defended, for its solution, upon cruelty alone, the case could doubtless be affirmed, in conformity with
the doctrine stated in Arroyo v. Vasquez de Arroyo (42 Phil., 54), where the charges of cruelty were
found to be unproved or insufficient. In that case, however, we were able to record the fact that neither
of the spouses had at any time been guilty of conjugal infidelity, and that neither had, so far as the proof
showed, even given just cause to the other to suspect illicit relations with any person. In the case before
us repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to be a
recurrent, if not an incurable offender against the sanctity of the marriage tie. This gives the wife an
undeniable right to relief.

The law is not so unreasonable as to require a wife to live in marital relations with a husband whose
incurable propensity towards other women makes common habitation with him unbearable. Deeply
rooted instincts of human nature sanction the separation in such case, and the law is not so
unreasonable as to require an acquiescence on the part of the injured party which is beyond the
capacity of nature. In order to entitle a wife to maintain a separate home and to require separate
maintenance from her husband it is not necessary that the husband should bring a concubine into the
marital domicile. Perverse and illicit relations with women outside of the marital establishment are
enough. As was said by Justice Moreland in Goitia v. Campos Rueda (35 Phil., 252, 262), a husband
cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and
where a husband by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by
him, he cannot take advantage of her departure to abrogate the law applicable to the marital relations
and repudiate his duties thereunder.

In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the opinion that
the sum of P500 per month will suffice, this being in addition to the use which she makes for living
quarters of a modest property belonging to the conjugal estate. During their marital life the spouses
have acquired real estate which, at the time of the trial, was assessed at more than P85,000, and which
at the same time was reasonably valued at more than P125,000. In addition to this the defendant
appears to be now earning a substantial salary in commercial activities. The plaintiff is also entitled to an
allowance for attorneys fees which we fix at P1,000 services rendered in the trial court and the same
amount for services rendered in the trial court and the same amount for services rendered in the trial
court and the same amount for services for attorneys fees which we fix at P1,000 for services rendered
in the trial court and the same amount for services rendered in the trial court and the same amount for
services rendered in this court. It appears that the two younger children are now living with the plaintiff,
and her right to their custody will be disturbed. While this litigation was pending in the lover court the
defendant was required to pay the amount of P500 per month for maintenance of the plaintiff, under an
interlocutory order of June 15, 1927. But these payments ceased when the appealed decision was
promulgated on or about the end of March 1928. The plaintiff in this case is therefore entitled to
judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall be promulgated in
this case, and from that date the defendant will be required to pay P500 per month for maintenance as
already suggested. The plaintiff will also be awarded the sum of P720 in satisfaction of the amount paid
out for the transcript necessary to this appeal.

The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of the
defendant the sum of P2,000 for attorneys fees, the sum of P720 for expenses of procuring transcript,
and the sum of P500 per month, beginning April 1, 1928, until the promulgation of this decision, after
which date the defendant is ordered to pay to the plaintiff by way of maintenance, on or before the
10th day of each month, the sum of P500. So ordered, with costs against the appellee.

Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

SUPREME COURT
Manila

EN BANC

G.R. No. L-28904 December 29, 1928

CIPRIANA GARCIA, plaintiff-appellant,
vs.
ISABELO SANTIAGO and ALEJO SANTIAGO, defendants-appellees.

Gregorio Perfecto for appellant.

M. H. de Joya and Pompeyo Diaz for appellees.

OSTRAND, J.:

This is an appeal but the plaintiff from a judgment of the Court of First Instance of Nueva Ecija dismissing
the complaint.

In her complaint the plaintiff alleges that she was married to the defendant Isabelo Santiago on April 8,
1910, and that from that date they lived together as husband and wife, until continued family
dissentions compelled her to leave the conjugal dwelling on February 3, 1925; that defendant Alejo
Santiago is a son of Isabelo Santiago by his first wife, and Prisca Aurelio is a daughter of plaintiff by her
first husband; that said Alejo Santiago seduced Prisca Aurelio, and the latter gave birth to a child; and
that the other defendant Isabelo Santiago, instead of seeing to the vindication of the honor of plaintiff's
daughter by requiring his son to marry her, has refused to have anything to do with the matter, thus
seemingly countenancing the illicit relations between them; that with a view to favoring materially the
said Alejo Santiago and fostering his whims and caprices, defendant Isabelo Santiago has been
conveying, and is attempting to convey, to said Alejo Santiago property belonging to their conjugal
partnership, to the damage and prejudice of plaintiff's rights; that, among the property that defendant
has conveyed or is attempting to convey Alejo Santiago, the lands specially described in the complaint
are the most important ones, which, with others, had been acquired by plaintiff and defendant Isabelo
Santiago during their married life with money belonging to the conjugal partnership, and with the
products and fruits of the property of the conjugal partnership, or through the industry of the two; that
said property produces annually around the neighborhood of 4,500 cavanes of palay at P4 per cavan;
that by reason of the attitude of defendant Isabelo Santiago, respecting the illicit relations of his son and
Prisca Aurelio, and his fraudulent acts conveying to said Alejo Santiago property belonging to the
conjugal partnership, plaintiff and Isabelo Santiago have been several discussions and quarrels, which
culminated in their separation of February 3, 1925, which separation became necessary in order to
avoid personal violence; that notwithstanding plaintiff's repeated demands, defendants Isabelo Santiago
has continually refused to provide for her support, and plaintiff could not live in their conjugal dwelling,
because of illicit relations between Alejo Santiago and Prisca Aurelio, countenance by the other
defendant Isabelo Santiago; that taking into consideration the actual financial conditions of the conjugal
partnership, plaintiff is entitled to a monthly pension P500 pendente lite; and that in the meanwhile, the
court should restrain defendant Isabelo Santiago from conveying of attempting to convey any property
of the conjugal partnership; that defendant Isabelo has publicly maintained illicit relations with a woman
by the name of Geronima Yap; and that by said immoral conduct and acts, defendant Isabelo Santiago
has shown himself unfit to administer the property of the conjugal partnership, and the court should
therefore order that its administration be placed in the hands of plaintiff. The defendants' answer to the
complaint was a general denial.

The appellant makes the following assignments of error:

(1) The court erred in declaring her separation from the defendant Isabelo Santiago unjustified.

(2) The court erred in dissolving the preliminary injunction and refusing to set aside the transfer of title
made by Isabelo Santiago in favor of Alejo Santiago.

(3) The court erred in not granting the plaintiff the right to administer the conjugal property.

(4) The court erred in not granting the plaintiff the right to administer the conjugal property.

(5) The court erred in not granting the other remedies prayed for in the complaint.

The second and fourth assignments of error are entirely without merit. The plaintiff has failed to prove
that the property conveyed to Alejo Santiago is community property; on the contrary, it is shown by
documentary evidence that the land was acquitted by Isabelo Santiago previously to his marriage to the
plaintiff. Neither can we find any sufficient reason for depriving the husband of his right to administer
such conjugal property as may exist.1awphi1.net

The first and third assignments of error deserved some consideration. It clearly appears that the spouses
led a rather stormy life subsequent to the dishonor of the plaintiff's daughter, Prisca, and that husband,
according to the plaintiff's testimony, went so far as to order her to leave his house and threatened to
illtreat her if she returned. It also appears that, aside from the quarrels, she had very unpleasant
experiences in other respects. Her young daughter was, and still, under her care, and her assertion that
her husband's son was the cause of her daughter's pregnancy is probably not unfounded. It requires no
stretch of the imagination to conclude that to keep the two young people under the same roof with the
opportunity to continue their illicit relations would create a very embarrassing situation for the girl's
mother.

Taking into consideration the facts stated, we do not think that the plaintiffs' separation from the
husband in unjustified. Ordinarily, it is not the fault of one that two quarrel, and in all probability, the
plaintiff is not free from blame, but she was virtually driven out of their home by her husband and
threatened with violence if she should return. Under these circumstances, to compel the plaintiff to
cohabit with her husband can only lead to further quarrels and would probably be unfortunate for both
parties. The separation therefore seems necessary.

As to the plaintiff's maintenance allowance it is the evident that the sum of P500 monthly is much too
large and that an allowance of P50 per month is all that ought be granted at present.

The fifth assignment of error relates principally to the plaintiff's prayer for an allowance of attorney's
fees. Under the circumstances of the case, we do not think that the court below erred in refusing to
grant such allowance.

The judgment appealed from is therefore modified, and it is ordered that the defendant, Isabelo
Santiago, pay to the plaintiff the sum of P50 per month for her maintenance and that such payments be
made within the first ten days of each month. No costs will be allowed. So ordered.

Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real, JJ., concur.

G.R. No. L-4089 January 12, 1909

ARTURO PELAYO, plaintiff-appellant,

vs.
MARCELO LAURON, ET AL., defendants-appellees.

J.H. Junquera, for appellant.

Filemon Sotto, for appellee.

TORRES, J.:

On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint against
Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said year, at
night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and that upon
arrival he was requested by them to render medical assistance to their daughter-in-law who was about
to give birth to a child; that therefore, and after consultation with the attending physician, Dr. Escao, it
was found necessary, on account of the difficult birth, to remove the fetus by means of forceps which
operation was performed by the plaintiff, who also had to remove the afterbirth, in which services he
was occupied until the following morning, and that afterwards, on the same day, he visited the patient
several times; that the just and equitable value of the services rendered by him was P500, which the
defendants refuse to pay without alleging any good reason therefor; that for said reason he prayed that
the judgment be entered in his favor as against the defendants, or any of them, for the sum of P500 and
costs, together with any other relief that might be deemed proper.

In answer to the complaint counsel for the defendants denied all of the allegation therein contained and
alleged as a special defense, that their daughter-in-law had died in consequence of the said childbirth,
and that when she was alive she lived with her husband independently and in a separate house without
any relation whatever with them, and that, if on the day when she gave birth she was in the house of
the defendants, her stay their was accidental and due to fortuitous circumstances; therefore, he prayed
that the defendants be absolved of the complaint with costs against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the
defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order the
defendants presented, on the same date, their amended answer, denying each and every one of the
allegations contained in the complaint, and requesting that the same be dismissed with costs.

As a result of the evidence adduced by both parties, judgment was entered by the court below on the
5th of April, 1907, whereby the defendants were absolved from the former complaint, on account of the
lack of sufficient evidence to establish a right of action against the defendants, with costs against the
plaintiff, who excepted to the said judgment and in addition moved for a new trial on the ground that
the judgment was contrary to law; the motion was overruled and the plaintiff excepted and in due
course presented the corresponding bill of exceptions. The motion of the defendants requesting that
the declaration contained in the judgment that the defendants had demanded therefrom, for the reason
that, according to the evidence, no such request had been made, was also denied, and to the decision
the defendants excepted.

Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having been
sent for by the former, attended a physician and rendered professional services to a daughter-in-law of
the said defendants during a difficult and laborious childbirth, in order to decide the claim of the said
physician regarding the recovery of his fees, it becomes necessary to decide who is bound to pay the bill,
whether the father and mother-in-law of the patient, or the husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-
contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs.

Obligations arising from law are not presumed. Those expressly determined in the code or in special
laws, etc., are the only demandable ones. Obligations arising from contracts have legal force between
the contracting parties and must be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual obligations to
which the spouses are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are mutually
bound to support each other, there can be no question but that, when either of them by reason of
illness should be in need of medical assistance, the other is under the unavoidable obligation to furnish
the necessary services of a physician in order that health may be restored, and he or she may be freed
from the sickness by which life is jeopardized; the party bound to furnish such support is therefore liable
for all expenses, including the fees of the medical expert for his professional services. This liability
originates from the above-cited mutual obligation which the law has expressly established between the
married couple.

In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to
the plaintiff for the professional services that he rendered to the daughter-in-law of the defendants
during her childbirth, is the husband of the patient and not her father and mother- in-law, the
defendants herein. The fact that it was not the husband who called the plaintiff and requested his
assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view of the
imminent danger, to which the life of the patient was at that moment exposed, considered that medical
assistance was urgently needed, and the obligation of the husband to furnish his wife in the
indispensable services of a physician at such critical moments is specially established by the law, as has
been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that he is
entitled to recover his fees, must direct his action against the husband who is under obligation to furnish
medical assistance to his lawful wife in such an emergency.

From the foregoing it may readily be understood that it was improper to have brought an action against
the defendants simply because they were the parties who called the plaintiff and requested him to
assist the patient during her difficult confinement, and also, possibly, because they were her father and
mother-in-law and the sickness occurred in their house. The defendants were not, nor are they now,
under any obligation by virtue of any legal provision, to pay the fees claimed, nor in consequence of any
contract entered into between them and the plaintiff from which such obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while
recognizing the validity and efficiency of a contract to furnish support wherein a person bound himself
to support another who was not his relative, established the rule that the law does impose the
obligation to pay for the support of a stranger, but as the liability arose out of a contract, the
stipulations of the agreement must be held. (Decision of May 11, 1897.)

Within the meaning of the law, the father and mother-in-law are strangers with respect to the obligation
that devolves upon the husband to provide support, among which is the furnishing of medical assistance
to his wife at the time of her confinement; and, on the other hand, it does not appear that a contract
existed between the defendants and the plaintiff physician, for which reason it is obvious that the
former can not be compelled to pay fees which they are under no liability to pay because it does not
appear that they consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below
are unfounded, because, if the plaintiff has no right of action against the defendants, it is needless to
declare whether or not the use of forceps is a surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the appellant. So ordered.
Mapa and Tracey, JJ., concur.
Arellano, C.J., and Carson, J., concurs in the result.
Willard, J., dissents.

G.R. No. L-13114 August 29, 1961

ELENITA LEDESMA SILVA, ET AL., plaintiffs-appellants,

vs.
ESTHER PERALTA, defendant-appellee.

E.B. Garcia Law Offices and Ledesma, Puno Guytingco and Antonio & Associates for plaintiffs-appellants.
Quijano, Abellera, Santos Corrales & Nitrorreda for defendant-appellee.

RESOLUTION

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

Appellants spouses Saturnino Silva and Elenita LedesmaSilva pray for reconsideration of this Court's
decision of November 25, 1960, claiming that
(1) Appellant Elenita Silva should be awarded moral damages for Esther Peralta's unauthorized use of
the designation of "Mrs. Esther Silva";

(2) The award of pecuniary damages against appellant Saturnino Silva is unwarranted by the facts and
the law.

It is contended that the prohibition imposed upon appellee Esther Peralta from representing herself,
directly or indirectly, as the wife of Saturnino Silva should result in an award of moral damages in favor
of appellant Elenita Ledesma, whose exclusive right to the appellation is recognized by the decision.

This argument misapprehends the bias of the decision. Esther Peralta was forbidden from representing
herself as Mrs. Saturnino Silva for the reason that it was proved in this case that she was not legally
married to him, and because he is now lawfully married to Elenita Ledesma. But an award of damages in
the latter's favor would require a further finding that the assumption of the disputed status by Esther
Peralta was made in bad faith or through culpable negligence and no such finding has been made in the
decision. The facts are that the Esther in good faith regarded herself as Saturnino's lawful wife, and that
the man himself led her into this belief prior to his desertion. That later on, unknown to Esther, Silva
should have married his co-appellant in the United States is not sufficient to impose upon Esther any
liability for damages or to destroy her original good faith, there being no proof that the existence of a
valid marriage between Saturnino and Elenita was adequately driven home to Esther before this case
was instituted. That the two appellants Silva were living together as husband and wife was certainly not
sufficient proof, considering Saturnino Silva's past history and conduct. How was appellee to know that
Saturnino's connection with Elenita Ledesma was any more legitimate than his previous one with
appellee herself?

Moreover, the trial court found Elenita Silva's claim for damages not adequately proved, and we have
not found in the record any justification to depart from that finding.

II

As to the award of damages against Saturnino Silva, it is to be noted that while the latter's liability was
extra-contractual in origin, still, under the Civil Code of 1889, the damages resulting from a tort are
measured in the same manner as those due from a contractual debtor in bad faith, since he must
answer for such damages, whether he had foreseen them or not, just as he must indemnify not only
for dumnum emergens but also forlucrum cessans, as required by Article 1106. Article 1902 of the 1889
Civil Code of Spain formulated no standard for measuring quasidelictual damages, the article merely
prescribing that the guilty party "shall be liable for the damages so done". This indefiniteness led
modern civil law writers to hold that the standards set in Articles 1106 and 1107, place in the general
rules on obligations, "rigen por igual para las contractuales y las extra contractuales, las preestablecidas
y las que broten ex-lege de actos ilicitos". (Roces, Notesto Fisher, "Los Daos Civiles y su Reparacion,"
(1927). Since liability for damages arises in either case from a breach of a pre-existing obligation (to
behave without fault or negligence in case of quasi-delicts, and, in case of contracts, to observe the
conduct required by the stipulation),it is logical to conclude with Planiol that "La responsabilidad
contractual y la extra contractual tienen el mismo fundamento, por lo que se hallan sujetas en principio
a identicas regalas" (6 Planiol-Ripert, Derecho Civil, p. 529,sec. 378). Giorgi is of the same opinion (5
Teoria de Obligaciones, pp. 133, 207-208). So is de Cossio y Corral("El Dolo en el Derecho Civil", pp. 132-
133):
 Pero si ello es asi, resulta claro que la aproximacionentre esta clase de culpa y la contractual, es
cada dia mayor,hasta el extremo de que, segun hemos antes indicado solamente se pueden
sealar diferencias accessorias, y muchas veces aparentes entre una y otra. En primer termino,
porque el conceptode culpa contractual se extiende no solo a las obligacionesnacidas ex
contractu, sino, en general, a todas aquellas preexistentes entre las partes a la realidad del acto
daoso (obligaciones legales). de otra parte, porque si bien consideramoslas cosas, la
responsabilidad llamada extracontractual, deriva siempre del quebrantamiento de un deber
general, implicitamentereconocido por la ley, cual es el de que todos deben actuar socialmente
con la debida diligencia, evitando causar dano a los demas, y una dercho que todo ciudadano
tine, correlativamente,a no ser da__ado en su patrimonio y bienes por la conducta dolosa o
negligente de los demas. En tal sentido, habria siempre entre el autor del dao y la victima, una
relacion juridica,constituida por este derecho y aquel deber.

Este idea de unidad entre ambas instituciones se traduce en que las pretendidadas diferencias
en order a la extension de la indemnizacion, en ambos casos, no puedan defenderse a la vista de
los preceptos de nuestro Derecho positivo. En efectono contiene el Capitulo II del Titulo XVI del
Libro IV de nuestroCodigo civil norma alguna referente a la extension de la indemnizacion que
en cada caso haya de prestarse, lo que nosobliga forzosamente a acudir a las normas general
contenidasen el Capitulo II, del Titulo I de dicho libro, IV, relativeo a los "efectos de los
obligaciones", que ninguna razon peermite limitar.a naturaleza contractual, ya que el articulo
1.101 hable genericamente de obligaciones el 1.102, de "todas las obligaciones";el 1.103, de
toda clase de obligaciones", y en ninguno de los articulos subsifuientes se hace referencia a una
clase especial de obligaciones, sino a todas en general.

Que las disposiciones de este Capitulo son aplicables en loscasos de culpa extracontractual, es
doctrina constantemente reconocida, por la jurisprudencia del Tribunal Supremo. Asi,en la
sentencia de 14 de diciembre de 1894, concretandose a losarticulos 1.101, 1.103 y 1.104, afirma
que son de caracter generaly applicables a toda clase de obligaciones, no
ofreciendocontradiccion con las especiales de los articulos 1.902 y 1.903; la sentencia de 15 de
enero de 1902, permite interpretar los articulos1.902, t 1.903 por los 1.103 y 1.106, a los efectos
de determinar los elementos que han de entrar en la indemnizacion.La misma doctrina se
mantiene en la senencia de 2 de diciembrede 1946, y en otras muchas que puedieramos aducir.

Whether or not the damages awarded to appellee are a natural and direct consequence of Silva's
deceitful maneuvers in making love to appellee, and inducing her to yield to his advances and live with
him as his wife (when Silva knew all the time that he could not marry Esther Peralta because of his
undissolved marriage to an Australian woman, a prior wedlock that he concealed from appellee), is a
question of appreciation. It is clear that Esther Peralta would not have consented to the liaison had
there been no concealment of Silva's previous marriage, or that the birth of the child was a direct result
of this connection. That Esther had to support the child because Silva abandoned her before it was born
is likewise patent upon the record, and we can not see how said appellant can be excused from liability
therefor.

Silva's seduction and subsequent abandonment of appellee and his illegitimate child were likewise the
direct cause for the filling of the support case in Manila, and in order to prosecute the same, appellee
had to quit her employment in Davao. While the case could have been filed in Davao, we do not believe
that this error in selecting a more favorable venue (due to her unfamiliarity with the technicalities of the
law) should be allowed to neutralized the appellant Silva's responsibility as the primary causative factor
of the prejudice and damage suffered by appellee.

It is argued that the maintenance of the child can not be considered as an element of damage because
the child's case for support was dismissed. This contention fails to take into account the action there
was for support as an acknowledged natural child, and that under the Civil Code of 1889 (the law in
force when the child was born), the right of natural children to be supported by their father depended
exclusively on the recognition by the father of his paternity; the rule being that

the mere fact of birth gave no legal right to the child, and imposed no legal duty upon the
father, except, perhaps, in cases arising under the criminal law.. . . The father was not, prior to
the Civil Code, and is not now, bound to recognize his natural son by reason of the mere fact
that he is the father. . . . But as to the father the question is, and always has been, Has he
performed any acts which indicate his intention to recognize the child as his?" (Buenaventura vs.
Urbano, 5 Phil., pp. 2-3).

It follows that in said suit, the real issue was whether the child had been duly recognized, the support
being a mere consequence of the recognition. Therefore, the failure of the child's action for support did
not adjudge that he was not the defendant's child, but that the defendant never recognized him as such.
That the decision of the Court of Appeal (CA-G.R. No. 24532-R) rejecting the child's action did not
declare him without right to support under all circumstances can be seen from the following statement
in the decision:

The proofs so far found in the record may possibly warrant the filing of an action for compulsory
recognition, under paragraphs 3 and 4 of Art. 283, but there was no action presented to that
effect.

Plainly, the issues and parties being different, the result of the child's action can not constitute res
judicata with regard to the mother's claim for damages against the father on account of the amounts
she was compelled to spend for the maintenance of their child. On the contrary, the very fact that the
child was not allowed to collect support from the father (appellant therein) merely emphasizes the
account of his birth and rearing, which, in turn, was a direct consequence of appellant's tortious
conduct. Since Esther Peralta had expressly that she had to support the child (Record of Appeal, p. 27, in
fine),and had prayed for such relief "as may be deemed just and equitable in the premises", there is no
reason why her expenses for the child's maintenance should not be taken into account.

Appellants submit that the damages allowed for maintenance of the son should be limited to P600.00 a
year, because the income tax law allows only that much deduction for each child. We do not believe
that income tax deductions constitute a reasonable basis for an award of damages, since they are fixed
an entirely different purpose (to arrive at the net taxable income) and merely represent the amount that
the state is willing to exempt from taxation. At that, it should be noted that the deductible amount has
been lately increased to P1,000.00 per annum. But even at P600.00 per annum, the damage suffered by
appellee on this count, from 1945 to 1960, already amount to around P9,000.00 a year, to which must
be added the loss of appellee's salary as executive of the Girl Scouts in Davao; so that the P15,000.00
damages awarded by the court below is by no means excessive, as already held in our decision in chief.
Appellants also contend that the claim for pecuniary damages has prescribed, because they date back to
1945. Suffice it to note that the defense of prescription was not invoked by appellants against the claim
for pecuniary damages, and this defense must be regarded as waived in relation to the same.
Appellant's reply to the appellee'sfirst counterclaim in her second amended answer (which was for
actual or pecuniary damages) read as follows (Answer to Counterclaim, Rec. App. p. 33):

1. That plaintiff is without knowledge or information sufficient to to form a belief as to the

truth of the allegations continued under paragraphs 6, 7, 8, 9, 10, 11 and 12 of the first
counterclaim and, therefore, specifically denies the same.

The defense of prescription was actually interposed only against the second counterclaim, in this wise:

1. That the cause of action alleged in the second counterclaim has already prescribed more
than ten years having already elapsed. (Answer to Counterclaim, Rec. App., p. 34).

The second counterclaim referred to was for damages due to "mental torture, anguish and hurt feelings,
all to her damage in the amount of P250,000." (Rec. App. p. 28).Upon the other hand, our own award
for moral damages was based, not on the deceit practiced by Silva in securing Esther's assent to live
maritally with him, but on his subsequent harassment of her in 1945, by filing suit against her in
different provinces and otherwise applying pressure to cause her to abandon her child's case. As this
cause of action arose less than three years before the present action was filed, the defense of
prescription is rendered untenable against it, for the limitation period had not yet expired when the suit
was brought.

WHEREFORE, the motion for reconsideration is denied.

Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes and Dizon, JJ., concur.

EN BANC

G.R. No. L-11086 March 29, 1958

PILAR ATILANO, Plaintiff-Appellee, vs. CHUA CHING BENG, Defendant-Appellant.

Quisumbing, Sycip & Associates for appellant.

Jose G. Bermas, Jr. for appellee.

FELIX, J.:

The facts of this case as appearing on record and in the stipulation submitted by the parties and
approved by the lower court, are as follows:chanrobles virtual law library
Chua Ching Beng and Pilar Atilano were joined in lawful wedlock in Zamboanga City in May of 1951,
after which marriage, the couple sailed for Manila and established their residence with the parents of
the husband. In October of the same year, at the husband's initiative, they went to Zamboanga City to
pay the parents of the wife a visit, and it seems that he was prevailed upon by the wife's parents to
return to Manila leaving her behind, with the understanding that she would follow him later, which
apparently she failed to do.chanroblesvirtualawlibrary chanrobles virtual law library

On September 30, 1953, Pilar Atilano filed with the Court of First Instance of Zamboanga a complaint for
support against her husband, alleging that they had been estranged and living separately since October,
1952, by reason of incessant marital bickerings and quarrels brought about by incompatibility of
temperament and above all, by defendant's inability to provide for themselves a home separate from
the latter's parents; that she was staying with her parents in Zamboanga City, without employment nor
had she any property of her own. She therefore, prayed that as defendant was under legal obligation to
support her, he be ordered to give her a monthly allowance, P200.00 from the date of the filing of the
complaint.chanroblesvirtualawlibrary chanrobles virtual law library

Defendant husband filed his answer contending that when they were still residing in Manila, their
married life was characterized by harmony and understanding; that when they visited plaintiffs parents
in Zamboanga in October 1952, he was prevailed upon by the latter to allow his wife to stay with them a
while with the understanding that she would follow him later to Manila; that through insidious
machinations, plaintiff's parents caused her to be alienated from him resulting in her refusal to return to
Manila and live with her husband again; that defendant went back to Zamboanga City to fetch her, but
through force and intimidation she was prevented by her parents from going with him; and that her
parents also exerted undue pressure and influence upon his wife to file the complaint. Defendant
further averred that while he was not evading his obligation to support his, he preferred to fulfill said
duty by receiving and maintaining her in Manila; that as the husband, defendant had the right to fix the
residence of his family, and he would even be willing to establish a conjugal dwelling in Manila separate
from that of his parents if that was the plaintiff's desire. Thus, it was prayed that the complaint be
dismissed.chanroblesvirtualawlibrary chanrobles virtual law library

In the meantime, plaintiff filed a petition for alimony pendente lite premised on the same facts as,
stated in her complaint, which was duly opposed by the defendant, and on May 3, 1954, based on
stipulation of facts agreed upon by the parties, the court rendered judgment granting the wife a
monthly allowance of P75 after finding that the wife's refusal to return to Manila was caused by her
aversion to stay with the parents of her husband after she had experienced some previous in-law
troubles; that her demand that they establish their home in Zamboanga could not be met by the
husband because of the latter's job in Manila and due also to the husband's fear that his wife would
always be under the influence and pressure of the latter's parents. No evidence was, however, adduced
to support her allegation of incompatibility of temperament and marital quarrels, and upon receipt of
the decision, defendant filed a petition electing to fulfill his; obligation as thus fixed by the trial court by
receiving and maintaining plaintiff at his residence at Pasay City, which was, apart, from that of his
parents, with the prayer that in the event, plaintiff would refuse to receive support under that set-up,
that he be declared under, no compulsion to remit the allowance to her at Zamboanga City. As it was
denied, defendant brought the matter to the Court of Appeals, but this Tribunal certified the case to Us
for adjudication pursuant to the provisions of Section 17-6 of Republic Act No. 296. The only question
presented for, our consideration by this appeal is whether a wife is entitled to received support from his
husband where she refused to live with him on account of some misunderstanding she had with the
husband's immediate relatives.chanroblesvirtualawlibrary chanrobles virtual law library
It is clear to Us, and this is borne out by the findings, of the court a quo, that plaintiff wife, then 19 yeas
of age, had the unfortunate experience of finding herself in some sort of domestic controversy, with her
husband's immediate relatives in the opposite camp, which made her feel that living with them would
already be intolerable and unbearable. Most likely, therefore, when they visited her parents, she
recounted her plight to them and as the usual reaction of parents in matters of this nature, they picked
up and championed the cause of their daughter which resulted in the estrangement of the young
couple. Indeed disagreement among in-laws is a problem as old as the world itself, but despite this
discouraging facet of married life there would always be in-laws as long there are marriages and the
same vicious cycle would be repeated. In the case at bar, which is a clear illustration of this perennial
domestic problem, We find that while the wife remains adamant on her stand to effect a separation in
fact between her and her husband, the latter, has adopted a more conciliatory attitude by
acknowledging his obligation to support her and even going to the extent of expressing his willingness to
abide by her wish to have a conjugal dwelling apart from his parents, although it, appears that he may
find it hard to make adequate provisions for their family, for he is allegedly receiving a salary of only 170
a month as salesman in a commercial firm. Defendant does not dispute that our civil Code imposes on
the husband the responsibility of maintaining and supporting, his wife and the rest of the family (Art.
111). He insists, however, that under the, Civil Code, which provides:

ART. 299. The person obliged to give support may, at his option, fulfill his obligation either by paying the
allowance fixed, or by receiving and maintaining in his house the person who has a right to receive
support. The latter alternative cannot be availed of in this case there is a moral or legal obstacle thereto;

he is given the option to fulfill the said duty either by paying the allowance as fixed by the Court or
receiving and maintaining the person entitled thereto in his house; and that he elects to perform his
obligation by the second means allowed him by law.chanroblesvirtualawlibrary chanrobles virtual law
library

The aforeqouted provision of the law is clear enough to require any further elucidation. In giving the
obligor the option to fulfill his duty, it provides for only one occasion when the second alternative could
not be availed of i.e., when there is a moral or legal obstacle thereto. It is true that plaintiff wife charged
that they were estranged because of marital troubles and incessant bickering. While physical ill-
treatment may be ground to compel a husband to provide a separate maintenance for his wife (
Arroyo vs.Vasquez de Arroyo, 42 Phil., 54 ) said allegation was not proved during the trial. Instead, the
lower court found that the root-cause of all their differences could be traced to disagreements common
among relatives by affinity. Certainly, We do not think that misunderstanding with in-laws, who may be
considered third parties to the marriage, is the moral or legal obstacle that the lawmakers contemplated
in the drafting of said provision. The law, in giving the husband authority to fix the conjugal residence
(Art. 110), does not prohibit him from establishing the same at the patriarchal home, nor is it against
any recognized norm of morality, especially if he is not fully capable of meeting his obligation as such
head of a family without the aid of his elders. But even granting arguendo that it might be "illegal" for
him to persist on living with his parents over the objection of his wife, this argument becomes moot in
view of defendant's manifestation that he is willing to establish a residence, separate from his parents, if
plaintiff so desires. We are aware are that although the husband and the wife are, obliged to live
together, observe mutual respect and fidelity and render mutual help and assistance ( Art. 109), and
that the wife is entitled to be supported, our laws contain no provision compelling the wife to live with
her husband where even without legal justification she establishes her residence apart from that
provided for by the former, yet and in such event We would see no plausible reason why she should be
allowed any support from the husband. It appearing that defendant husband availed of the option
granted him by Article 299 of the Civil Code and there being no legal or moral hindrance to the exercise
of the second alternative as elected by him, the answer to the question presented by this appeal is
certainly obvious.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the decision appealed from is hereby modified by giving the defendant husband Chua Ching
Beng the option of supporting his wife at their conjugal dwelling apart from the home of the parents of
the husband. Should plaintiff wife refuse to abide by the terms of this decision, then the defendant-
appellant shall be considered relieved from the obligation of giving any support to his wife. Without
pronouncement as to costs. It is so ordered.chanroblesvirtualawlibrary chanrobles virtual law library

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

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-41427 June 10, 1988

CONSTANCIA C. TOLENTINO, petitioner,

vs.
COURT OF APPEALS and CONSUELO DAVID, respondents.

GUTIERREZ, JR., J.:

The issue in this petition for review on certiorari is whether or not a woman who has been legally
divorced from her husband may be enjoined by the latter's present wife from using the surname of her
former husband.

A complaint was filed by petitioner Constancia C. Tolentino with the then Court of First Instance of
Quezon City against Consuelo David for the purpose of stopping and enjoining her by injunction from
using the surname Tolentino. The complaint also contained a claim for damages which the petitioner,
however, waived. An application for a writ of preliminary injunction was filed as well.

On January 13, 1972 respondent Consuelo David filed her answer admitting she has been using and
continues to use the surname Tolentino.

The application for the writ was heard with both parties presenting evidence in support of their
respective claims.

On January 18, 1972, the trial court issued an order granting the petitioner's action for a writ of
preliminary injunction with the actual writ being issued on January 20, 1972. The order granting said
writ reads:

NOW, THEREFORE, it is hereby ordered by the undersigned Judge of the Court of First
Instance of Rizal, Branch XVI, Quezon City, that, until further orders, you CONSUELO
DAVID, your agents and/or representatives and/or persons acting under your control,
direction, instruction and/or supervision, ARE ENJOINED from using, employing and/or
applying, in any manner, form or means whatsoever, the surname TOLENTINO. (p. 17,
Original Record On Appeal)

On February 2, 1972, respondent Consuelo filed a motion for leave to file a third party complaint against
her former husband. The motion was granted on March 18,1972. Thereafter, third party defendant
Arturo Tolentino filed his answer on April 19,1972.

After the hearings, the trial court rendered a decision in favor of the petitioner. The dispositive portion
of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered confirming the

preliminary injunction and making the same permanent and perpetual-restraining and
enjoining defendant, her agents and/or representatives and/or persons acting under her
control, direction, instruction and/or supervision, from using, employing and/or
applying, in any manner, form or means whatsoever, the surname" TOLENTINO."

No pronouncement as to costs, the same having been waived by the plaintiff.

The third-party complaint is hereby dismissed, without pronouncement as to costs. (p.

93, Original Record on Appeal)

The private respondent appealed the decision to the Court of Appeals raising several issues, among
them, the prescription of the plaintiff's cause of action and the absence of a monopolistic proprietary
right of the plaintiff over the use of the surname Tolentino.
On June 25, 1975, the Court of Appeals reversed the decision of the trial court.

The dispositive portion of the decision reads as follows:

IN VIEW WHEREOF, sustaining Error 1, this Court is constrained to reverse, as it now

reverses, judgment appealed from, complaint is dismissed, with costs. (p. 76,
Petitioner's Brief)

The petitioner filed a motion for reconsideration but the same was denied in a resolution dated August
29,1975.

Hence, this appeal by the petitioner.

The uncontroverted facts of the case are:

The petitioner is the present legal wife of Arturo Tolentino, their marriage having been celebrated on
April 21, 1945 in Manila. The union produced three children.

Respondent Consuelo David was legally married to Arturo Tolentino on February 8, 1931. Their marriage
likewise produced children. The marriage was dissolved and terminated pursuant to the law during the
Japanese occupation on September 15, 1943 by a decree of absolute divorce granted by the Court of
First Instance of Manila in Divorce Case No. R-619 entitled "Arturo Tolentino v. Consuelo David" on the
ground of desertion and abandonment by the wife. The trial court granted the divorce on its finding that
Arturo Tolentino was abandoned by Consuelo David for at least three (3) continuous years.

Thereafter, Arturo Tolentino married a certain Pilar Adorable, who however, died soon after their
marriage. Tolentino subsequently married Constancia on April 21, 1945.

Consuelo David, on the other hand, continued using the surname Tolentino after the divorce and up to
the time of the filing of this complaint.

The third party defendant, in his answer, admitted that the use of the surname Tolentino by the private
respondent was with his and his family's (brothers and sisters) consent.

The petition mainly revolves around two issues:

1. Whether or not the petitioner's cause of action has already prescribed, and

2. Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of
her former husband from whom she was divorced.

The petitioner's contention that her cause of action is imprescriptible is without merit. In fact, it is
contradictory to her own claim. The petitioner insists that the use by respondent Consuelo David of the
surname Tolentino is a continuing actionable wrong and states that every use of the surname
constitutes a new crime. The contention cannot be countenanced because the use of a surname by a
divorced wife for a purpose not criminal in nature is certainly not a crime. The rule on prescription in
civil cases such as the case at bar is different. Art. 1150 of the Civil Code provides: "The time for
prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be
counted from the day they may be brought."

All actions, unless an exception is provided, have a prescriptive period. Unless the law makes an action
imprescriptible, it is subject to bar by prescription and the period of prescription is five (5) years from
the time the right of action accrues when no other period is prescribed by law (Civil Code, Art. 1149).
The Civil Code provides for some rights which are not extinguished by prescription but an action as in
the case before us is not among them. Neither is there a special law providing for imprescriptibility.

Moreover, the mere fact that the supposed violation of the petitioner's right may be a continuous one
does not change the principle that the moment the breach of right or duty occurs, the right of action
accrues and the action from that moment can be legally instituted (Soriano v. Sternberg, 41 Phil. 210).

The respondent Court of Appeals, on the other hand, is of the opinion that the period of prescription
should be four (4) years, since it appears to be an action based on quasi-delict. hatever the period, it
cannot be denied that the action has long prescribed whether the cause accrued on April 21, 1945 when
the petitioner and Arturo Tolentino got married, or on August 30, 1950, when the present Civil Code
took effect, or in 1951 when Constancia Tolentino came to know of the fact that Consuelo David was still
using the surname Tolentino. It is the legal possibility of bringing the action which detemines the
starting point for the computation of the period of prescription (Espanol v. Phil. Veterans
Administration, 137 SCRA 314).

The petitioner should have brought legal action immediately against the private respondent after she
gained knowledge of the use by the private respondent of the surname of her former husband. As it is,
action was brought only on November 23, 1971 with only verbal demands in between and an action to
reconstitute the divorce case. The petitioner should have filed her complaint at once when it became
evident that the private respondent would not accede to her demands instead of waiting for twenty (20)
years.

As aptly stated by the Court of Appeals, "where the plaintiff fails to go to the Court within the
prescriptive period, he loses his cause, but not because the defendant had acquired ownership by
adverse possession over his name but because the plaintiffs cause of action had lapsed thru the statute
of limitations." (p. 37, Rollo)

On the principal issue of whether or not a divorced woman may continue using the surname of her
former husband, Philippine law is understandably silent. We have no provisions for divorce in our laws
and consequently, the use of surnames by a divorced wife is not provided for.

There is no merit in the petitioner's claim that to sustain the private respondent's stand is to contradict
Articles 370 and 371 of the Civil Code.

It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code
states that "the wife cannot claim an exclusive right to use the husband's surname. She cannot be
prevented from using it; but neither can she restrain others from using it." (Tolentino, Civil Code, 1974
ed., P. 681).
Art. 371 is not applicable to the case at bar because Art. 371 speaks of annulment while the case before
us refers to absolute divorce where there is a severance of valid marriage ties. The effect of divorce is
more akin to the death of the spouse where the deceased woman continues to be referred to as the
Mrs. of her husband even if the latter has remarried rather than to annulment since in the latter case, it
is as if there had been no marriage at all.

The private respondent has established that to grant the injunction to the petitioner would be an act of
serious dislocation to her. She has given proof that she entered into contracts with third persons,
acquired properties and entered into other legal relations using the surname Tolentino. The petitioner,
on the other hand, has failed to show that she would suffer any legal injury or deprivation of legal rights
inasmuch as she can use her husband's surname and be fully protected in case the respondent uses the
surname Tolentino for illegal purposes.

There is no usurpation of the petitioner's name and surname in this case so that the mere use of the
surname Tolentino by the Private respondent cannot be said to have injured the petitioner's rights. "The
usurpation of name implies some injury to the interests of the owner of the name. It consists in the
possibility of confusion of Identity ... between the owner and the usurper. It exists when a person
designates himself by another name ... The following are the elements of usurpation of a name: 1) there
is an actual use of another's name by the defendant; 2) the use is unauthorized; and 3) the use of
another's name is to designate personality or Identify a person" (Tolentino, supra, p. 685). None of these
elements exists in the case at bar and neither is there a claim by the petitioner that the private
respondent impersonated her. In fact, it is of public knowledge that Constancia Tolentino is the legal
wife of Arturo Tolentino so that all invitations for Senator and Mrs. Tolentino are sent to Constancia.
Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino but simply as Mrs.
Consuelo David-Tolentino. The private respondent has legitimate children who have every right to use
the surname Tolentino. She could not possibly be compelled to use the prefix "Miss" or use the name
Mrs. David, different from the surnames of her children. The records do not show that she has legally
remarried.

In Silva, et al. v. Peralta (110 Phil. 57) cited by the petitioner, it was not the mere use of the surname
that was enjoined but the defendant's representation that she was the wife of Saturnino Silva. There
was, therefore, a usurpation of the wife's status which is absent in the case at bar.

We rule that the use of the surname Tolentino does not impinge on the rights of the petitioner.

Considering the circumstances of this petition, the age of the respondent who may be seriously
prejudiced at this stage of her life, having to resort to further legal procedures in reconstituting
documents and altering legal transactions where she used the surname Tolentino, and the effects on the
private respondent who, while still not remarried, will have to use a surname different from the
surnames of her own children, we find it just and equitable to leave things as they are, there being no
actual legal injury to the petitioner save a deep hurt to her feelings which is not a basis for injunctive
relief.

WHEREFORE, the petition is hereby DISMISSED for lack of merit. The decision of the Court of Appeals is
AFFIRMED. The writs of preliminary and mandatory injunction issued by the trial court are SET ASIDE.

SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

EN BANC

[G.R. No. L-14874. September 30, 1960.]

ANTONIO PEREZ, in his own representation and as Guardian Ad Litem of his son BENIGNO PEREZ y
TUASON, Plaintiff-Appellant, v. ANGELA TUASON DE PEREZ, Defendant-Appellee.

Alfonso Felix Jr. for Appellant.

Jose W. Diokno for Appellee.

SYLLABUS

1. COURTS; JURISDICTION; GUARDIANSHIP COGNIZABLE BY JUVENILE AND DOMESTIC RELATIONS

COURT. Since the complaint asks that defendant be placed under guardianship because of her
prodigality, and prays that a suitable person or institution be appointed to administer her properties,
the action falls squarely under the provisions of subsection (b), Sec. 38-A, Republic Act No. 1401, as a
"case involving. . . . . guardianship" exclusively cognizable by the Juvenile and Domestic Relations Court.

2. ID.; ID.; PROCEEDINGS UNDER ART. 116, CIVIL CODE; COGNIZABLE BY JUVENILE AND DOMESTIC
RELATIONS COURT. Inasmuch as the plaintiff seeks to recover damages because his wifes acts placed
him "in an embarrassing and contemptible position and causing him grave anxiety, wounded feelings,
extreme humiliation," the case involves acts of a spouse that brings . . . dishonor . . . upon the other
"under Art. 116," Civil Code; hence, pursuant to subsection (d), Sec. 38-A of Republic Act No. 1401, this
action likewise fails exclusively within the jurisdiction of the Juvenile and Domestic Relations Court.

3. ID.; ID.; MERE SUBMISSION OF COMPROMISE DOES NOT PLACE PARTY IN ESTOPPEL; COURT MAY
MOTU PROPRIO DISMISS ACTION. Assuming for the sake of argument that defendant was placed in
such estoppel by merely executing the compromise and submitting it to the Courts approval, such
estoppel could not operate against it, because regardless of the parties, the Court, at any time, could
motu proprio inquire and determine whether it had jurisdiction, and could dismiss the case if it found it
had no power to act therein.

DECISION

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

Appeal from an order, dated October 27, 1958, of the Court of First Instance of Manila, dismissing its
Civil Case No. 34626 for lack of jurisdiction.

Plaintiff Antonio Perez, in his own representation and as guardian ad litem of his adoptive son, Benigno
Perez y Tuason, initiated this civil case against Angela Tuason de Perez, the plaintiffs wife and Benignos
mother. The complaint states three causes of action.

Under the first cause of action, it is averred that the defendant is squandering all of her estate on a
young man by the name of Jose Antonio Campos Boloix, because of which Benigno Perez y Tuason,
acting through his guardian ad litem, the plaintiff, prays that his mother, the defendant, be declared a
prodigal and placed under guardianship; that a suitable person or institution be appointed to administer
her properties; and that during the pendency of this suit, a writ of injunction be issued to prevent the
continued waste and dissipation of her properties.

In his second cause of action, the husband Antonio Perez, for and in his own behalf, asserts that by
virtue of the said alleged acts of prodigality committed by the defendant wife, the conjugal partnership
of gain is being dissipated to the prejudice of both spouses; wherefore, he prays for a writ of injunction
to restrain her from "dissolving and liquidating the conjugal partnership of gains."

Finally, as a third cause of action, the plaintiff husband avers that, in addition to the aforementioned
acts, the defendant has repeatedly advised him, as well as other persons, that she intends to marry Jose
Campos Boloix and to have a child by him not withstanding her present marriage to the plaintiff,
Antonio Perez; and that, if she could not have such a child, she was willing to have one by any other
person, just to put plaintiff in a ridiculous and embarrassing position. Plaintiff, therefore, seeks to
recover from her the total sum of P185,000.00 by way of damages and attorneys fees. On January 2,
1958, after a preliminary hearing, wherein plaintiff was heard ex parte, the Court of First Instance of
Manila issued a preliminary injunction as prayed for in the complaint.

On March 19, 1958, the defendant appeared through counsel and prayed for the dismissal of the case
on the ground of res judicata, and that the preliminary injunction be dissolved. Said motion was denied
by the court a quo in its order of April 2, 1958.

On April 16, 1958, the defendant filed a second motion to dismiss the case, this time on the ground that
the Court of First Instance of Manila had no jurisdiction over the present proceedings, which, according
to her, is vested under Republic Act No. 1401 with the Juvenile and Domestic Relations Court. While this
last motion was being considered by the Court, a compromise agreement was arrived at and submitted
for approval of the court on May 2, 1958. On May 31, 1958, before the Court could act, defendant filed
an opposition to the approval of the compromise agreement, on the ground that (a) the same is
contrary to law and (b) it was not freely or validly entered into by her representative. Without resolving
this particular question, the lower court asked the parties to submit further memoranda on the sole
issue of jurisdiction. After this was done, the trial court, by order of September 30, 1958, ordered the
dismissal of the case on the ground that it lacked jurisdiction over the subject matter. Hence, plaintiffs
Perez (father and son) appealed.

Appellants assign three alleged errors in the order appealed from, as follows:jgc:chanrobles.com.ph

"The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over the
causes of action alleged by Antonio Perez in the complaint.

"The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over the
causes of action alleged by Benigno Perez y Tuason in the complaint.

The trial court cried in holding that the Doctrine of Estoppel of Jurisdiction is not applicable in this
country and erred further in failing to apply said doctrine to the present proceedings."cralaw virtua1aw
library

We find the appeal to be untenable.

Republic Act No. 1401, creating the Juvenile and Domestic Relations Court of the City of Manila and
defining its jurisdiction, provides, among other things, that:jgc:chanrobles.com.ph

"SEC. 38-A Provisions of the Judiciary Act to the contrary notwithstanding, the court shall have
exclusive original jurisdiction to hear and decide the following cases after the effectivity of this
Act:chanrob1es virtual 1aw library

(b) Cases involving custody, guardianship, adoption, paternity and acknowledgment;

x x x

(d) Proceedings brought under the provisions of Articles one hundred sixteen, two hundred twenty-
five, two hundred fifty, two and three hundred thirty-one of the Civil Code." (Italics supplied.)
While Article 116 of the Civil Code (referred to in subsection [d] above) states:jgc:chanrobles.com.ph

"When one of the spouses neglects his or her duties to the conjugal union or brings danger, dishonor or
material injury upon the other, the injured party may apply to the court for relief.

The court may counsel the offended party to comply with his or her duties, and take such measures as
may be proper." (Italics supplied.)

It is easy to see that the first cause of action set forth in the complaint, wherein the minor Benigno Perez
y Tuason, through his representative, asks that his mother be placed under guardianship because of her
alleged prodigality, and prays that a suitable person or institution be appointed to administer her
properties, is exclusively cognizable by the Domestic Relations Court. The action falls squarely under the
provisions of subsection (b), Section 38-A, R. A. 1401, above-quoted, as a "case involving . .
guardianship." No error was, therefore, committed in the appealed order in holding that this cause of
action lay outside the jurisdiction of the Court of First Instance.

The same thing can be said of the third cause of action wherein Antonio Perez seeks to recover damages
and attorneys fees because his wifes act (avowing openly her intention to marry and have a child by
Campos Boloix or if not, by anyone else) placed the plaintiff "in an embarrassing and contemptible
position" (sic) and causing him "grave anxiety, wounded feelings, extreme humiliation." The case
involves acts of a spouse that "brings . . . dishonor . . . upon the other (spouse)" under Article 116 of the
Civil Code of the Philippines, and also lies within the jurisdiction of the Domestic Relations Court. The
law (subsection (d), Sec. 38-A) expressly gives that court exclusive original jurisdiction over proceedings
under the provisions of Article 116 of the Civil Code.

More controversial is the issue involved in the second cause of action of the complaint, wherein Antonio
Perez alleges that the prodigal acts of his wife result in the conjugal partnership of gains being dissipated
to the prejudice of both spouses, and prays for a writ of injunction to restrain her from "dissolving and
liquidating the conjugal partnership of gains." The Court of First Instance held that this cause of action is
also one of those provided by Article 116 of the Civil Code, as a case where one spouse "brings danger . .
. or material injury" upon the other, and, therefore, relief should be sought in the Court of Domestic
Relations.

We are inclined to think that" material injury" as used in Article 116 does not refer to patrimonial
(economic) injury or damage, but to personal (i. e. physical or moral) injury to one of the spouses, since
Article 116 lies in the chapter concerning personal relations between husband and wife. Nevertheless,
the court below was correct in viewing this cause of action as primarily predicated on the grant of
guardianship due to alleged prodigality of the wife, since the allegation thereof is therein reiterated, and
the remedy of injunction sought against further (i.e. future) acts of disposition (no annulment of her
past transactions is demanded) must be necessarily based on the wifes being subject to guardianship.

If the wife were not in any way incapacitated, the mere fact that the alienation of her paraphernal
would deprive the conjugal partnership of the future fruits thereof would not give rise to a cause of
action for injunction, since the conjugal partnership is only entitled to the net fruits of such property,
after deducting administration expenses (Peoples Bank v. Register of Deeds, 60 Phil., 167), and it is now
here alleged that any such net fruits exist. More fundamental still, the wifes statutory power to alienate
her paraphernal (Phil. Civil Code, Article 140) necessarily implies power to alienate its future fruits, since
the latter are mere accessory to the property itself.
Wherefore, the second cause of action is inextricably woven into and cannot stand independently of the
demand for guardianship of the wife, the injunction being a mere incident thereof; so that like the first
cause of action, the second also lay within the exclusive jurisdiction of the Court of Domestic Relations.

The third alleged error charged against the Court below, that it should have held that defendant was in
estoppel to question the jurisdiction of the trial court, is, on its face, without merit. Assuming for the
sake of argument that defendant appellee was placed in such estoppel by merely executing the
compromise and submitting it to the Courts approval, such estoppel could not operate against the
Court. Regardless of the parties, the Court, at any time, could motu proprio inquire and determine
whether it had jurisdiction over the subject matter of the action, and could dismiss the case (as it did) if
it found that it had no power to act therein.

The order appealed from is hereby affirmed. Costs against appellants.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Barrera, Gutierrez David, Paredes, and
Dizon, JJ., concur.

EN BANC

G.R. No. L-17014 August 11, 1921

MARIANO B. ARROYO, plaintiff-appellant,

vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.

Fisher & DeWitt for appellant.

Powell & Hill for appellee.

STREET, J.:

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 fact.

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 order.

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
alimony.
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 contempt.

]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., concur.

G.R. No. 94986 February 23, 1995

HATIMA C. YASIN, represented by her Attorney-in-Fact, HADJI HASAN S. CENTI, petitioner,

vs.
THE HONORABLE JUDGE SHARI'A DISTRICT COURT THIRD SHARI'A JUDICIAL DISTRICT, Zamboanga
City,respondent.

RESOLUTION

BIDIN, J.:

On May 5, 1990, Hatima C. Yasin filed in the Shari'a District Court in Zamboanga City a "Petition to
resume the use of maiden name" (Sp. Proc. No. 06-3). The petition reads:
 1. That she is of legal age, a divorcee, a Muslin Filipino and a resident of Suterville,
Zamboanga City, Philippines, and is duly represented in this act by her elder brother and
attorney-in-fact, HADJI HASAN S. CENTI by virtue of an instrument of a Special Power of
Attorney, original copy of which is hereto attached and marked as Annex "A" hereof;

2. That she was formerly married to a certain Hadji Idris Yasin, also a Muslim Filipino in
accordance with Muslim rites and customs, and who is now residing at Barangay
Recodo, Zamboanga City, but sometime on March 13, 1984, they were granted a decree
of divorce by the Mindanao Islamic Center Foundation, Inc., in accordance with Islamic
Law, the divorce rites was officiated by Ustadz Sharif Jain Jali as evidenced by his
Certification, dated march 13, 1984, copy of which is hereto attached as Annex "B" to
form an integral part hereof;

3. That, thereafter the former husband Hadji Idris Yasin contracted another marriage to
another woman;

WHEREFORE, invoking the provisions of Article 143, par. 1(c) of Presidential Decree No.
1083 in relation to Article 371 (2) of the New Civil Code, and after due notice and
hearing, it is most respectfully prayed of this Honorable Court that petitioner be allowed
to resume the use of her maiden name Hatima Centi y Saul.

On July 4, 1990, the respondent court issued an order which reads as follows:

It patently appearing that the petition filed is not sufficient in form and substance in
accordance with Section 2(a) and 3, Rule 103, Rules of Court, regarding the residence of
petitioner and the name sought to be adopted is not properly indicated in the title
thereof which should include all the names by which the petitioner has been known (Ng
Yao Siong v. Republic of the Philippines, L-20306, March 31, 1966, 16 SCRA [483]; Go v.
Republic of the Philippines, L-31760, May 25, 1977; Pabellar v. Republic, L-27298, march
4, 1976), the pleading must be rectified accordingly.

WHEREFORE, petitioner is hereby ordered to effect the necessary amendment of the

petition within one (1) week from receipt hereof so as to reflect the formal
requirements adverted to. (Rollo, p. 9)

Hatima filed a motion for reconsideration of the aforesaid order alleging that the petition filed is not
covered by Rule 103 of the Rules of Court but is merely a petition to resume the use of her maiden
name and surname after the dissolution of her marriage by divorce under the Code of Muslim Personal
Laws of the Philippines (P.D. No. 1083), and after marriage of her former husband to another woman.

The motion was denied by the respondent court in an order dated August 10, 1990, on the ground that
the petition is substantially for change of name and that compliance with the provisions of Rule 103,
Rules of Court on change of name is necessary if the petition is to be granted as it would result in the
resumption of the use of petitioner's maiden name and surname.

Hence, this petition alleging that respondent court erred in applying Rule 103 of the Rules of Court to
the instant case.
In his Comment dated June 14, 1991, the respondent court, among others, contends:

5. . . . (R)espondent court is of the honest opinion that the said petition is substantially
one for change of name, particularly of surname Hatima C. Yasin to Hatima Centi y
Saul, the latter being her maiden name and surname. Her reasons: The (1) dissolution of
her marriage, and (2) her legal right to resume the use of her maiden name and
surname. In effect, if petition is granted, it will result in the resumption of the use of
her surname.

Moreover, the use of surnames is governed by law (Arts. 364-380, Title XIII, New Civil
Code). This is the substantive requirements. And as to procedural requirements, no
person can change his name orsurname without judicial authority (Art. 376, Civil Code of
the Philippines) (Emphasis supplied). Change of name under judicial authorization is
governed by Rule 103 of the Revised Rules of Court. Under Sec. 1 of said rule: "a person
desiring to change his name shall present the petition to the Court of First Instance of
the province (now RTC) in which he resides, or in the City of Manila, to the Juvenile and
Domestic Relations Court." The State has an interest in the names borne by individual
and entities for purposes of identification. A change of name is a privilege and not a
matter of right. Therefore, before a person can be authorized to change his name (given
him either in his birth certificate or civil registry), he must show proper or compelling
reason, which may justify such change. Otherwise, the request should be denied (Ong
Peng Oan v. Republic, 102 Phil. 468) (See: Paras, Civil Code of the Philippines Annotated,
Vol. I, 8th Ed., 1978, pp. 739-740). (Rollo, pp. 46-47)

The basic issue to be resolved is: whether or not in the case of annulment of marriage, or divorce under
the Code of Muslim Personal Laws of the Philippines, and the husband is married again to another
woman and the former desires to resume her maiden name or surname, is she required to file a petition
for change of name and comply with the formal requirements of Rule 103 of the Rules of Court.

Stated otherwise, the issue is: whether or not a petition for resumption of maiden name and surname is
also a petition for change of name.

The Court rules in the negative.

The true and real name of a person is that given to him and entered in the civil register (Chomi v. Local
Civil Register of Manila, 99 Phil. 1004 [1956]; Ng Yao Siong v. Republic, 16 SCRA 483 [1966]; Rendora v.
Republic, 35 SCRA 262 [1970]; Pabellar v. Republic, 70 SCRA 16 [1976]).

While it is true that under Article 376 of the Civil Code, no person can change his name or surname
without judicial authority, nonetheless, the only name that may be changed is the true and official name
recorded in the Civil Register. Thus, this Court in Ng Yao Siong v. Republic (16 SCRA 483 [1966]), held:

In a proceeding for a change of name the following question may crop up: What is the
name to be changed? By Article 408 of the Civil Code a person's birth must be entered in
the civil register. So it is, that the civil register records his name. That name in the civil
register, for legal purposes, is his real name. And correctly so, because the civil register
is an official record of the civil status of persons. A name given to a person in the church
 record or elsewhere or by which he is known in the community when at variance with
that entered in the civil register is unofficial and cannot be recognized as his real
name.

We therefore rule that for the purposes of an application for change of name under
Article 376 of the Civil Code, the only name that may be changed is the true or official
name recorded in the civil register.

Petitioner's registered name is Hatima Centi Y. Saul. In the instant petition, petitioner does not seek to
change her registered maiden name but, instead, prays that she be allowed to resume the use of her
maiden name in view of the dissolution of her marriage to Hadji Idris Yasin, by virtue of a decree of
divorce granted in accordance with Muslim law.

Divorce (talaq) is defined in PD 1086, the Code of Muslim Personal Laws of the Philippines, as follows:

Art. 45. Definition and forms. Divorce is the formal dissolution of the marriage bond
in accordance with this Code to be granted only after exhaustion of all possible means
of reconciliation between the spouses. It may be effected by:

(a) Repudiation of the wife by the husband (talaq);

xxx xxx xxx

(c) Judicial decree ( faskh).

Divorce (talaq or faskh) severs the marriage bond. Thus, Article 54 of PD 1086 provides:

Art. 54. Effects of irrevocable talaq or faskh. A talaq or faskh, as soon as it become
irrevocable, shall have the following effects:

(a) The marriage bond shall be severed and the spouses may contract
another marriage in accordance with this Code;

The divorce becomes irrevocable after observance of a period of waiting called idda (Art. 56, PD 1086)
the duration of which is 3 monthly courses after termination of the marriage by divorce (Art. 57[b], PD
1083). Under Article 187, PD 1083, the Civil Code of the Philippines, the Rules of Court and other existing
laws, insofar as they are not inconsistent with the provisions of this Code (the Code of Muslim Personal
Laws), shall be applied suppletorily.

Even under the Civil Code, the use of the husband's surname during the marriage (Art. 370, Civil Code),
after annulment of the marriage (Art. 371, Civil Code) and after the death of the husband (Art. 373, Civil
Code) is permissive and not obligatory except in case of legal separation (Art. 372, Civil Code). Thus,
Articles 370 and 371 of the Civil Code provides:

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or
 (2) Her maiden first name and her husband's surname, or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
"Mrs."

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to continue employing her
former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

According to Tolentino:

. . . Under the present article of our Code, however, the word "may" is used, indicating
that the use of the husband's surname by the wife is permissive rather than obligatory.
We have no law which provides that the wife shall change her name to that of the
husband upon marriage. This is in consonance with the principle that surnames indicate
descent. It seems, therefore, that a married woman may use only her maiden name and
surname. She has an option, but not a duty, to use the surname of the husband in any of
the ways provided by this Article. (Tolentino, Civil Code of the Philippines, Vol. I, p. 724,
1983 ed.)

When a woman marries a man, she need not apply and/or seek judicial authority to use her husband's
name by prefixing the word "Mrs." before her husband's full name or by adding her husband's surname
to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the
marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as
authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the
change in her civil status in order to revert to her maiden name as the use of her former husband's
name is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code).
When petitioner married her husband, she did not change her name but only her civil status. Neither
was she required to secure judicial authority to use the surname of her husband after the marriage as
no law requires it.

In view of the foregoing considerations, We find the petition to resume the use of maiden name filed by
petitioner before the respondent court a superfluity and unnecessary proceeding since the law requires
her to do so as her former husband is already married to another woman after obtaining a decree of
divorce from her in accordance with Muslim laws.

Although there is no legal prohibition against obtaining a judicial confirmation of a legal right,
nevertheless, no law or rule provides for the procedure by which such confirmation may be obtained. In
view of such circumstances, the onerous requirements of Rule 103 of the Rules of Court on change of
name should not be applied to judicial confirmation of the right of a divorced woman to resume her
maiden name and surname. In the absence of a specific rule or provision governing such a proceeding,
where sufficient facts have been alleged supported by competent proof as annexes, which appear to be
satisfactory to the court, such petition for confirmation of change of civil status and/or to resume the
use of maiden name must be given due course and summarily granted as in fact it is a right conferred by
law.

While the petition filed in the instant case leaves much to be desired in matters of form and averment of
concise statements of ultimate facts constituting the petitioner's cause of action, nevertheless, giving it
a most liberal construction, the petition suffices to convey the petitioner's desire and prayer to resume
her maiden surname on grounds of her divorce from her former husband and subsequent marriage of
the latter to another woman.

The remand of this case to the trial court would only delay the final disposition of this case and would
not serve the public interest. We have consistently ruled that the remand of the case to a lower court
for further reception of evidence is not necessary if this Court can already resolve the dispute on the
basis of the records before it (Dimayuga v. PCIB, 200 SCRA 143 [1991]; Board of Liquidators v. Zulueta,
115 SCRA 548 [1982]: Quisumbing v. CA, 120 SCRA 703 [1983]).

WHEREFORE, the petition is GRANTED and the orders of respondent court dated July 4, 1990 and August
10, 1990 are hereby SET ASIDE. Petitioner is authorized to resume her maiden name and surname.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Kapunan,
Mendoza, and Francisco, JJ., concur.

Separate Opinions

ROMERO, J., concurring:

From birth, a person's identity is established by his name. Although oftener used by others in addressing
him, he identifies himself with this name, such that in his mind, he not only has a name but he is that
name.

Thus, to set him apart from the rest of mankind, he makes certain that people know him by the name
his parents have given him from birth. Recognizing the implications of confused identities, the law
requires the registration of a newly-born infant's name along with the fact of birth reflective of his civil
status. As a badge of identity, one's name is protected by law from usurpation 1 or unauthorized or
unlawful use by others. 2 Not only this, a person is prohibited by law from using different names and
surnames. 3 An alias or assumed name may be used for business purposes provided this is duly
registered. 4 In the event that one employs pen names or stage names, this must be done in good faith
and there should be no injury to third persons. 5 During elections, only votes bearing names registered
by a candidate are to be counted in his favor. Indeed, the man of law parts ways with the poet who
rhetorically asks:

What's in a name?

A rose by any other name smells as sweet.

So fraught with complications is the use of an individual of another name that, in case he decides to
change it, the law requires him to seek judicial permission to do so, even if it be merely to rectify an
error committed in one's birth or baptismal records, unless it be an innocuous clerical error. 6

On instance where tradition or custom, even more than law, sanctions the use of another or an
additional name is the adoption by a woman who gets married of her husband's name. In certain
cultures, this signifies her formal joining of her husband's family, on the one hand, and on the other, her
acceptance therein.

Conceding the importance of laying down rules as regards the use of names resulting from the
contracting of marriage, or its breakup, the Civil Code has provided for each eventuality. For instance,
Art. 370 gives a married woman certain options with respect to the change of name reflective of the
change of her civil status, without need of recourse to judicial process:

It provides:

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
"Mrs." (Emphasis supplied)

It is to be noted that the introductory sentences uses the directory "may" instead of the mandatory
"shall." Its obvious intendment is that the married woman, if she chooses to, need not use her
husband's surname. Clearly, no law prohibits her from continuing to use her maiden name and surname
if she wishes to; or for that matter, to resume the same even as she uses her husband's family name
during matrimony, as long as there is disclosure and no fraudulent intent.

In recognition of the increasing clamor of women worldwide for equality, the 1987 Constitution laid
down the basic policy with respect to the standing of women and men in the eyes of the law, thus:

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.

If it means anything at all, it signifies that women, no less than men, shall enjoy the same rights
accorded by law and this includes the freedom of choice in the use of names upon marriage. To give
substance and meaning to the policy, laws have been enacted by Congress, and rules and regulations
issued by administrative agencies, notably Republic Act No. 7192 "promoting the integration of women
as full and equal partners of men in development and nation building. . . ."

Whatever rights or opportunities used to be denied to women in categorical language or due to

ambiguity or implied from long-continued practice or custom, are now clearly granted to them, such as
the right to "enter into contracts which shall in every respect be equal to that of men under similar
circumstance," 7 equal membership in clubs, 8 admission to military schools, 9 voluntary PAG-IBIG, GSIS
and SSS Coverage 10 and others.

Now that doors hitherto closed to them have been flung open with the approbation and active
collaboration of men, should we refuse to recognize their right to the continued used of their (maiden)
name and surname even after marriage, without doubt a comparatively minor concession? Other than
the bruising of the male ego, there can hardly be any legal injury or damage resulting to personal,
property or contractual rights of the husbands.

In many countries, the trend is for married women to retain their maiden names. Even in the
Philippines, the use of the title "Ms." to refer to women in general, whether single, married, widowed or
separated, has gained acceptance.

Where, however, a woman voluntarily assumes her husband's family name upon marriage, the
dissolution of the matrimonial bonds consequent upon the granting of absolute divorce or the
declaration of nullity of marriage or its annulment, provides legal ground for the automatic dropping of
said family name and the resumption of the use of her maiden name. This is but in recognition of the
change of her civil status from "married" to "unmarried." Such right should not be begrudged her,
whether her former husband contracts another union or not.

I could not agree more with the enlightened ponencia of my respected colleague who, being a Muslim
like the petitioner, is in the best position to understand the customs, mores and practices, as well as the
feelings of the men and women of his faith.

VITUG, J., concurring:

I concur with my esteemed colleague, Mr. Justice Abdulwahid A. Bidin, on his well-written ponencia.
Allow me, nonetheless, to express my views, in general, on the use of surnames by married women.

The accepted rule is that a person may only use his own name and surname. One exception involves a
married woman. When a woman marries, the law, or what I believe to be its intendment, would appear
to mandate, in brief outline, thusly

A. During the existence of the marriage, she may choose to use any of the following
names:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and husband's surname, or

(3) Her husband's full name but must prefix a word to indicate that she is his wife (Art.
370, Civil Code).

Notes:

(1) It is mandatory that the husband's surname should, in any of the above options, be
somehow used.

Interestingly, in one of the deliberations of the Civil Code Revision Committee at the
U.P. Law Center (participated in by Justice Jose B.L. Reyes, Justice Ricardo C. Puno,
Justice Eduardo Caguioa, Justice Alicia Sempio-Diy, Atty. Ofelia Calcetes-Santos, Dean
Fortunato Gupit and Dean Jose C. Vitug), a proposal to allow a married woman to use
her maiden name and surname (after noting the provision of Sec. 14, Article II, of the
Constitution which expresses the "fundamental equality before the law of women and
men") was turned down by the Committee.

(2) In case of legal separation, the wife must continue using her name and surname
employed before the decree of legal separation (Art. 372, Civil Code), i.e., she may not
at will revert to her maiden name and surname (Laperal vs. Republic, 6 SCRA 357).

B. In the event of annulment of marriage

(1) If the wife is adjudged to be the guilty party, she must resume her maiden name and
surname, but

(2) If the wife is the innocent party

(i) She may resume her maiden name and surname, or

(ii) She may choose o continue using her husband's surname unless

(a) The court decrees otherwise, or

(b) She or he remarries (Art. 371, Civil Code).

C. In case of death of the husband The widow may use her husband's surname (Art.
373, Civil Code), or resume her maiden name and surname (pursuant to the general
rule).

D. In case of divorce

The rule has been held to be akin to Item C (death of husband), i.e., she may use her
husband's surname (Tolentino vs. Court of Appeals, 162 SCRA 66) or resume her maiden
name and surname (general rule).
 Note: It would seem preferable to have this situation governed instead by the rules on
annulment where we would distinguish between a case where the wife gives cause for
divorce (annulment) and the instance when she is the innocent party.

E. In case of declaration of nullity of marriage No marriage having, or being deemed

to have, technically existed, the general rule, i.e., that she may only use her own name
and surname, should apply, but if she has, in fact, theretofore used the husband's
surname, she obviously should cease from such use upon the finality of the decree of
nullity.

Separate Opinions

ROMERO, J., concurring:

From birth, a person's identity is established by his name. Although oftener used by others in addressing
him, he identifies himself with this name, such that in his mind, he not only has a name but he is that
name.

Thus, to set him apart from the rest of mankind, he makes certain that people know him by the name
his parents have given him from birth. Recognizing the implications of confused identities, the law
requires the registration of a newly-born infant's name along with the fact of birth reflective of his civil
status. As a badge of identity, one's name is protected by law from usurpation 1 or unauthorized or
unlawful use by others. 2 Not only this, a person is prohibited by law from using different names and
surnames. 3 An alias or assumed name may be used for business purposes provided this is duly
registered. 4 In the event that one employs pen names or stage names, this must be done in good faith
and there should be no injury to third persons. 5 During elections, only votes bearing names registered
by a candidate are to be counted in his favor. Indeed, the man of law parts ways with the poet who
rhetorically asks:

What's in a name?

A rose by any other name smells as sweet.

So fraught with complications is the use of an individual of another name that, in case he decides to
change it, the law requires him to seek judicial permission to do so, even if it be merely to rectify an
error committed in one's birth or baptismal records, unless it be an innocuous clerical error. 6

On instance where tradition or custom, even more than law, sanctions the use of another or an
additional name is the adoption by a woman who gets married of her husband's name. In certain
cultures, this signifies her formal joining of her husband's family, on the one hand, and on the other, her
acceptance therein.
Conceding the importance of laying down rules as regards the use of names resulting from the
contracting of marriage, or its breakup, the Civil Code has provided for each eventuality. For instance,
Art. 370 gives a married woman certain options with respect to the change of name reflective of the
change of her civil status, without need of recourse to judicial process:

It provides:

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
"Mrs." (Emphasis supplied)

It is to be noted that the introductory sentences uses the directory "may" instead of the mandatory
"shall." Its obvious intendment is that the married woman, if she chooses to, need not use her
husband's surname. Clearly, no law prohibits her from continuing to use her maiden name and surname
if she wishes to; or for that matter, to resume the same even as she uses her husband's family name
during matrimony, as long as there is disclosure and no fraudulent intent.

In recognition of the increasing clamor of women worldwide for equality, the 1987 Constitution laid
down the basic policy with respect to the standing of women and men in the eyes of the law, thus:

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.

If it means anything at all, it signifies that women, no less than men, shall enjoy the same rights
accorded by law and this includes the freedom of choice in the use of names upon marriage. To give
substance and meaning to the policy, laws have been enacted by Congress, and rules and regulations
issued by administrative agencies, notably Republic Act No. 7192 "promoting the integration of women
as full and equal partners of men in development and nation building. . . ."

Whatever rights or opportunities used to be denied to women in categorical language or due to

ambiguity or implied from long-continued practice or custom, are now clearly granted to them, such as
the right to "enter into contracts which shall in every respect be equal to that of men under similar
circumstance," 7 equal membership in clubs, 8 admission to military schools, 9 voluntary PAG-IBIG, GSIS
and SSS Coverage 10 and others.

Now that doors hitherto closed to them have been flung open with the approbation and active
collaboration of men, should we refuse to recognize their right to the continued used of their (maiden)
name and surname even after marriage, without doubt a comparatively minor concession? Other than
the bruising of the male ego, there can hardly be any legal injury or damage resulting to personal,
property or contractual rights of the husbands.
In many countries, the trend is for married women to retain their maiden names. Even in the
Philippines, the use of the title "Ms." to refer to women in general, whether single, married, widowed or
separated, has gained acceptance.

Where, however, a woman voluntarily assumes her husband's family name upon marriage, the
dissolution of the matrimonial bonds consequent upon the granting of absolute divorce or the
declaration of nullity of marriage or its annulment, provides legal ground for the automatic dropping of
said family name and the resumption of the use of her maiden name. This is but in recognition of the
change of her civil status from "married" to "unmarried." Such right should not be begrudged her,
whether her former husband contracts another union or not.

I could not agree more with the enlightened ponencia of my respected colleague who, being a Muslim
like the petitioner, is in the best position to understand the customs, mores and practices, as well as the
feelings of the men and women of his faith.

VITUG, J., concurring:

I concur with my esteemed colleague, Mr. Justice Abdulwahid A. Bidin, on his well-written ponencia.
Allow me, nonetheless, to express my views, in general, on the use of surnames by married women.

The accepted rule is that a person may only use his own name and surname. One exception involves a
married woman. When a woman marries, the law, or what I believe to be its intendment, would appear
to mandate, in brief outline, thusly

A. During the existence of the marriage, she may choose to use any of the following
names:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and husband's surname, or

(3) Her husband's full name but must prefix a word to indicate that she is his wife (Art.
370, Civil Code).

Notes:

(1) It is mandatory that the husband's surname should, in any of the above options, be
somehow used.

Interestingly, in one of the deliberations of the Civil Code Revision Committee at the
U.P. Law Center (participated in by Justice Jose B.L. Reyes, Justice Ricardo C. Puno,
Justice Eduardo Caguioa, Justice Alicia Sempio-Diy, Atty. Ofelia Calcetes-Santos, Dean
Fortunato Gupit and Dean Jose C. Vitug), a proposal to allow a married woman to use
her maiden name and surname (after noting the provision of Sec. 14, Article II, of the
Constitution which expresses the "fundamental equality before the law of women and
men") was turned down by the Committee.
(2) In case of legal separation, the wife must continue using her name and surname
employed before the decree of legal separation (Art. 372, Civil Code), i.e., she may not
at will revert to her maiden name and surname (Laperal vs. Republic, 6 SCRA 357).

B. In the event of annulment of marriage

(1) If the wife is adjudged to be the guilty party, she must resume her maiden name and
surname, but

(2) If the wife is the innocent party

(i) She may resume her maiden name and surname, or

(ii) She may choose o continue using her husband's surname unless

(a) The court decrees otherwise, or

(b) She or he remarries (Art. 371, Civil Code).

C. In case of death of the husband The widow may use her husband's surname (Art.
373, Civil Code), or resume her maiden name and surname (pursuant to the general
rule).

D. In case of divorce

The rule has been held to be akin to Item C (death of husband), i.e., she may use her
husband's surname (Tolentino vs. Court of Appeals, 162 SCRA 66) or resume her maiden
name and surname (general rule).

Note: It would seem preferable to have this situation governed instead by the rules on
annulment where we would distinguish between a case where the wife gives cause for
divorce (annulment) and the instance when she is the innocent party.

E. In case of declaration of nullity of marriage No marriage having, or being deemed

to have, technically existed, the general rule, i.e., that she may only use her own name
and surname, should apply, but if she has, in fact, theretofore used the husband's
surname, she obviously should cease from such use upon the finality of the decree of
nullity.