A.

DOMICILE

G.R. No. 104960 September 14, 1993

PHILIP G. ROMUALDEZ, petitioner,

vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA, BOARD OF
ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL
REGISTRAR COMELEC, TOLOSA, LEYTE, respondents.

Otilia Dimayuga-Molo for petitioner.

The Solicitor General for respondents.

VITUG, J.:

An event in this decade, which future generations would likely come to know simply as the "EDSA
People's Power Revolution of 1986," has dramatically changed the course of our nation's history. So,
too, not a few of our countrymen have by it been left alone in their own personal lives. One such
case is that of the petitioner in this special civil action for certiorari.

The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of the former
Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda
Marcos. Sometime in the early part of 1980, the petitioner, in consonance with his decision to
establish his legal residence at Barangay Malbog, Tolosa, Leyte,1 caused the construction of his
residential house therein. He soon thereafter also served as Barangay Captain of the place. In the
1984 Batasan Election and 1986 "snap" Presidential Election, Romualdez acted as the Campaign
Manager of the Kilusang Bagong Lipunan (KBL) in Leyte where he voted.2

When the eventful days from the 21st to the 24th of February, 1986, came or were about to come to
a close, some relatives and associates of the deposed President, fearing for their personal safety,
whether founded or not, "fled" the country. Petitioner Romualdez, for one, together with his
immediate family, left the Philippines and sought "asylum" in the United States which the United
States (U.S.) government granted.3 While abroad, he took special studies on the development of
Leyte-Samar and international business finance.4

In the early part of 1987, Romualdez attempted to come back to the Philippines to run for a
congressional seat in Leyte. On 23 March 1987, he finally decided to book a flight back to the
Philippines but the flight was somehow aborted.5

On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of the
U.S. Immigration and Naturalization Service, informing him that he should depart from the U.S. at his
expense on or before 23 August 1992, thus:

. . . Failure to depart on or before the specified date may result in the withdrawal of
voluntary departure and action being taken to effect your deportation. In accordance
with a decision made to your case, you are required to depart from the United States
at your expense on or before 23 August 1992.6

Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving on
December 1991 apparently without any government document.7
When Romualdez arrived in the Philippines, he did not delay his return to his residence at Malbog,
Tolosa, Leyte. During the registration of voters conducted by the Commission on Election
("COMELEC") on 01 February 1992 for the Synchronized National and Local Election scheduled for
11 May 1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog, Tolosa,
Leyte. The chairman of the Board of Election Inspectors, who had known Romualdez to be a
resident of the place and, in fact, an elected Barangay Chairman of Malbog in 1982, allowed him to
be registered.

Romualdez's registration, however, was not to be unquestioned. On 21 February 1992, herein

private respondent Donato Advincula ("Advincula") filed a petition with the Municipal Trial Court of
Tolosa, Leyte, praying that Romualdez be excluded from the list of voters in Precinct No. 9 of
Malbog, Tolosa, Leyte, under BP 881 and RA 7166.8 Advincula alleged that Romualdez was a
resident of Massachusetts, U.S.A.; that his profession and occupation was in the U.S.A.; that he had
just recently arrived in the Philippines; and that he did not have the required one-year residence in
the Philippines and the six-month residence in Tolosa to qualify him to register as a voter in
Barangay Malbog, Tolosa, Leyte.9

On 25 February 1992, Romualdez filed an answer, contending that he has been a resident of
Tolosa, Leyte, since the early 1980's, and that he has not abandoned his said residence by his
physical absence therefrom during the period from 1986 up to the third week of December 1991. 10

After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision 11 on 28 February 1992,
the dispositive portion of which reads:

WHEREFORE PREMISES CONSIDERED, the court finds the respondent to be a

resident of Brgy. Malbog, Tolosa, Leyte and qualified to register as a voter thereat.
Hence, the instant petition for exclusion of Philip G. Romualdez from the list of voter
of Precinct No. 9, Malbog, Tolosa, Leyte is hereby ordered DENIED and petition
DISMISSED.

SO ORDERED.

Upon receipt of the adverse decision, Advincula appealed the case to the respondent court.

On 03 April 1992, the respondent court rendered the assailed decision, 12 thus:

WHEREFORE, this Court finds respondent Philip Romualdez disqualified to register

as a voter for the 1992 elections and hereby reverses the decision of the lower
court in toto.

The Municipal Registrar of the Commission on Elections of Tolosa, Leyte, is hereby

ordered to delete and cancel the name of respondent Philip G. Romualdez from the
list of qualified voters registered February 1, 1992, at Precinct 9, barangay Malbog,
Tolosa, Leyte.

SO ORDERED.

Hence, this recourse.

On 7 May 1992, this Court issued a temporary restraining order directing respondent Regional Trial
Court Judge Pedro Espino to cease and desist from enforcing questioned decision.13
The petitioner has raised several issues which have been well synthesized by the Solicitor General
into —

(1) Whether or not the MTC and RTC acquired jurisdiction over, respectively, Case No. 01-S. 1992
and Case No. 92-03-42, the petition having been filed by one who did not allege to be himself a
registered voter of the municipality concerned; and

(2) Whether or not the respondent court erred in finding the petitioner to have voluntarily left the
country and abandoned his residence in Malbog, Tolosa, Leyte.

The petition is impressed with merit.

Anent the first issue, the petitioner assails for the first time the jurisdiction of the respondent Court
and the MTC of Tolosa, Leyte, in taking cognizance of the case, despite an absence of any
allegation in the petition filed with the MTC that Advincula was himself a registered voter in Precinct
No. 9 of Barangay Malbog, Tolosa, Leyte conformably with Section 142 of the Omnibus Election
Code. 14

When respondent Advincula filed the petition with the MTC for the exclusion of herein petitioner
Romualdez, the latter countered by filing his answer 15 and praying for the denial of the petition,
without raising the issue of jurisdiction. But what can be telling is that when the MTC decision,
denying the petition for disqualification, went on appeal to the RTC, Romualdez, in his own appeal-
memorandum, explicitly prayed that the MTC decision be affirmed. This unassailable incident leads
us to reiterate that "while lack of jurisdiction may be assailed at any stage, a party's active
participation in the proceedings before a court without jurisdiction will estop such party from assailing
such lack of jurisdiction." 16 Undoubtedly, the petitioner is now estopped from questioning the
jurisdiction of the respondent not only by his active participation in the proceedings thereat but, more
importantly, in having sought an affirmative relief himself when the appeal was made to the latter
court whose jurisdiction he, in effect, invoked. Furthermore, the question is not really as much the
jurisdiction of the courts below as merely the locus standi of the complainant in the proceedings, a
matter that, at this stage, should be considered foreclosed.

In any case, we consider primordial the second issue of whether or not Romualdez voluntarily left
the country and abandoned his residence in Malbog, Tolosa, Leyte. Here, this time, we find for the
petitioner.

The Solicitor General himself sustains the view of petitioner Romualdez. Expressing surprise at this
stance given by the Solicitor General, respondent Advincula posits non sequitur argument 17 in his
comment assailing instead the person of Solicitor Edgar Chua. If it would have any value, at all, in
disabusing the minds of those concerned, it may well be to recall what this Court said in Rubio
vs. Sto. Tomas: 18

It is also incumbent upon the Office of the Solicitor General to present to the Court
the position that will legally uphold the best interest of the government, although it
may run counter to a client's position.

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile", which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention." 19 "Domicile" denotes a fixed permanent residence to which when absent
for business or pleasure, or for like reasons, one intends to return. 20 That residence, in the case of
the petitioner, was established during the early 1980's to be at Barangay Malbog, Tolosa, Leyte.
Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. 21 In
other words, there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual. 22

The political situation brought about by the "People's Power Revolution" must have truly caused
great apprehension to the Romualdezes, as well as a serious concern over the safety and welfare of
the members of their families. Their going into self-exile until conditions favorable to them would
have somehow stabilized is understandable. Certainly, their sudden departure from the country
cannot be described as "voluntary," or as "abandonment of residence" at least in the context that
these terms are used in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that much to convince us that the petitioner
had, in fact, abandoned his residence in the Philippines and established his domicile elsewhere.

It must be emphasized that the right to vote is a most precious political right, as well as a bounden
duty of every citizen, enabling and requiring him to participate in the process of government so as to
ensure that the government can truly be said to derive its power solely from the consent of the
governed. 23 We, therefore, must commend respondent Advincula for spending time and effort even
all the way up to this Court, for as the right of suffrage is not to be abridged, so also must we
safeguard and preserve it but only on behalf of those entitled and bound to exercise it.

WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE COURSE; of the
Decision of the respondent Regional Trial Court dated 03 April 1992 is hereby REVERSED and SET
ASIDE, and the Decision of the Municipal Trial Court dated 28 February 1992 is hereby
REINSTATED and the Temporary Restraining Order issued by the Court in this case is
correspondingly made PERMANENT. No pronouncement as to costs.

SO ORDERED.

B. LIVE TOGETHER

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; Boyd vs. 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.

G.R. No. 139789 July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO,

ERLINDA K. ILUSORIO, petitioner,
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE
DOES, respondents.

x---------------------------------------------------------x

G.R. No. 139808 July 19, 2001

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners,

vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.

RESOLUTION

PARDO, J.:

Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled
fortune.

On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her
husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have
custody of her husband in consortium.

On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of
unlawful restraint or detention of the subject, Potenciano Ilusorio.

Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari
pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was
consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and
Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never
refused to see her.

On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the
petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7

What is now before the Court is Erlinda's motion to reconsider the decision.8

On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00
a. m., without requiring the mandatory presence of the parties.

In that conference, the Court laid down the issues to be resolved, to wit:

(a) To determine the propriety of a physical and medical examination of petitioner

Potenciano Ilusorio;

(b) Whether the same is relevant; and

(c) If relevant, how the Court will conduct the same.9

The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and
their lawyers to initiate steps towards an amicable settlement of the case through mediation and
other means.

On November 29, 2000, the Court noted the manifestation and compliance of the parties with the
resolution of October 11, 2000.10

On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that
Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical
experts appointed by the Court.11

On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of
January 31 , 2001.12

The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her
arguments that have been resolved in the decision.

Nevertheless, for emphasis, we shall discuss the issues thus:

First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in
consortium and that Potenciano's mental state was not an issue. However, the very root cause of the
entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that
she wanted Potenciano Ilusorio to live with her.

Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents
Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property
rights out of pure greed.14 She claimed that her two children were using their sick and frail father to
sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also
argued that since Potenciano retired as director and officer of Baguio Country Club and Philippine
Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and
Sylvia were the ones controlling the corporations.15
The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March
23, 1999.16 Potenciano himself declared that he was not prevented by his children from seeing
anybody and that he had no objection to seeing his wife and other children whom he loved.

Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did
not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be
brought before the Supreme Court so that we could determine his mental state.

We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to
see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals.

As to whether the children were in fact taking control of the corporation, these are matters that may
be threshed out in a separate proceeding, irrelevant in habeas corpus.

Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by
the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and
incomplete. We see no reason why the High Court of the land need go to such length. The hornbook
doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We
emphasize, it is not for the Court to weigh evidence all over again.18 Although there are exceptions to
the rule,19 Erlinda failed to show that this is an exceptional instance.

Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family
Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live
together and care for each other. We agree.

The law provides that the husband and the wife are obliged to live together, observe mutual love,
respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband
and wife and not any legal mandate or court order" to enforce consortium.21

Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having
separated from bed and board since 1972. We defined empathy as a shared feeling between
husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of
spiritual communion. Marital union is a two-way process.

Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem"
respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime
social institution.22

On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme
Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et
bono.

IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been
rendered moot by the death of subject.

SO ORDERED.

C. SUPPORT

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 Territorial wherein, 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 Doña 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.

D. PRIVACY

G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
 DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers
taken by her from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her
husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that
case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did
not constitute malpractice or gross misconduct, For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's
complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr.,
this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with
merit:"2
 On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he
maintains that:

....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional
Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial
court. Hence, during the enforceability of this Court's order, respondent's request for
petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity
of the questioned annexes, At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself
of her husband's admission and use the same in her action for legal separation cannot be
treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not constitute a violation of the injunctive order
of the trial court. By no means does the decision in that case establish the admissibility of the
documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the marriage, save for
specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for
each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.