Albano v.

Gapusan

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal
Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte (1) with
incompetence and Ignorance of the law for having prepared and notarized a document
providing for tile personal separation of husband and wife and the extrajudicial
liquidation of their conjugal partnership

It was stipulated in that document that if either spouse should commit adultery or
concubinage, as the case may be, then the other should refrain from filing an action
against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had
been separated for a long time when they signed the separation agreement and that the
wife had begotten children with her paramour. He said that there was a stipulation in
the agreement that the spouses would live together in case of reconciliation. His belief
was that the separation agreement forestalled the occurrence of violent incidents
between the spouses.

Albano in filing the malpractice charge is in effect asking this Court to take belated
disciplinary action against Judge Gapusan as a member of the bar or as a notary.

There is no question that the covenents contained in the said separation

agreement are contrary to law, morals and good customs (Biton vs. Momongan, 62
Phil. 7). Those stipulations undermine the institutions of marriage and the family,
"Marriage is not a mere contract but an inviolable social institution". "The family is a
basic social institution which public policy cherishes and protects." Marriage and the
family are the bases of human society throughout the civilized world

To preserve the institutions of marriage and the family, the law considers as void
"any contract for personal separation between husband and wife" and "every
extrajudicial agreement, during the marriage, for the dissolution of the conjugal
partnership. Before the new Civil Code, it was held that the extrajudicial
dissolution of the conjugal partnership without judicial sanction was void

Respondent Gapusan as a member of the bar should be censured for having notarized
the void separation agreement already mentioned.

However, his notarization of that document does not warrant any disciplinary action
against him as a municipal judge (he was appointed in 1946 as justice of the peace)
especially considering that his appointment to the judiciary was screened by the
Commission on Appointments
In Re: Atty. Bucana

Judge notarized an agreement of the spouses saying that “in case anyone of them will
remarry both parties offer no objection and waive all civil and criminal actions against
them" and that the afore-mentioned Agreement was "entered into for the purpose of
agreement to allow each and everyone of them to remarry without objection or
reservation ...", which affidavit is contrary to law because it sanctions an illicit and
immoral purpose.

There is no question that the afore-mentioned Agreement is contrary to law, morals and
good customs. Marriage is an inviolable social institution, in the maintenance of which
in its purity the public is deeply interested for it is the foundation of the family and of
society without which there could be neither civilization nor progress.

The contract, in substance, purports to formulate an agreement between the husband

and the wife to take unto himself a concubine and the wife to live in adulterous relations
with another man, without opposition from either one, and what is more, it induces
each party to commit bigamy. This is not only immoral but in effect abets the
commission of a crime.

In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find, however,
that the aforementioned document could not have been notarized if the respondent had
only exercised the requisite care required by law in the exercise of his duties as notary
public.

WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and

is hereby suspended from the office of not try public for a period of six (6) months,
with the admonition that a repetition of the same or a similar act in the future will be
dealt with more severely.
Goita
This is an action by the wife against her husband for support outside of
the conjugal domicile.
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.
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.
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.
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:.
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;
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.
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
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 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 PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-
appellees.
PADILLA, J.:
A complaint for adultery was filed by Andres Bondoc against Guadalupe
Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and
having repeated sexual intercourse during the period from the year 1946
14 March 1947, the date of the filing of the complaint, Dalmacio Bondoc
knowing his codefendant to be a married woman (criminal case No. 426).
The defendant wife entered the plea of guilty and was sentenced to
suffer four months of arresto mayor which penalty she served. In the
same court, on 17 September 1948, the offended husband filed another
complaint for adulterous acts committed by his wife and her paramour
from 15 March 1947 to 17 September 1948, the date of the filing of the
second complaint (criminal case No. 735). On 21 February 1949, each of
the defendants filed a motion to quash the complaint of the ground that
they would be twice put in jeopardy of punishment for the same offense.
The trial court upheld the contention of the defendants and quashed
the second complaint. From the other sustaining the motions to
quash the prosecution has appealed.
The trial court held that the adulterous acts charged in the first
and second complains must be deemed one continuous offense,
the defendants in both complaints being the same and identical
persons and the two sets of unlawful acts having taken place
continuously during the years 1946, 1947 and part of 1948, and
that the acts or two sets of acts that gave rise to the crimes of
adultery complained of in both cases constitute one and the same
offense, within the scope and meaning of the constitutional
provision that "No person shall be twice put in jeopardy of
punishment for the same offense.".
Adultery is a crime of result and not of tendency. it is a instantaneous
crime which is consummated and exhausted or completed at the moment
of the carnal union. Each sexual intercourse constitutes a crime of
adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two or
more adulterous acts committed by the same defendants are
against the same person — the offended husband, the same status
— the union of the husband and wife by their marriage, and the same
community represented by the State for its interest in maintaining and
preserving such status. But this identity of the offended party, status
society does not argue against the commission of the crime of adultery
as many times as there were carnal consummated, for as long as the
status remain unchanged, the nexus undissolved and unbroken, an
encroachment or trespass upon that status constitutes a crime.
There is no constitutional or legal provision which bars the filing of
as many complaints for adultery as there were adulterous acts
committed, each constituting one crime.
The notion or concept of a continuous crime has its origin in the juridical
fiction favorable to the law transgressors and in many a case against the
interest of society. For it to exist there would be plurality of acts
performed seperately during a period of time; unity of penal provision
infringed upon or violated; and unity of criminal intent or purpose,
which means that two or more violations of the same penal
provision are united in one and the same intent leading to the
perpetration of the same criminal purpose or aim (Ibid. p. 520).In the
instant case the last unity does not exist, because as already stated
the culprits perpetrate the crime in every sexual intercourse and
they need not to another or other adulterous acts to consummate it.
After the last acts of adultery had been committed as charged in the first
complaint, the defendants again committed adulterous acts not included
in the first complaint and for which the second complaint was filed. It was
held by the Supreme Court of Spain that another crime of adultery was
committed, if the defendants, after their provincional release during the
pendency of the case in which they were sent to prison to serve the
penalty imposed upon them
Another reason why a second complaint charging the commission of
adulterous acts not included in the first complaint does not constitute a
violation of the double jeopardy clause of the constitution is that, if the
second places complaint the defendants twice in jeopardy of punishment
for the same offense, the adultery committed by the male defendant
charged in the second complaint, should he be absolved from, or
acquitted of, the first charge upon the evidence that he did not know that
his codefendant was a married woman, would remain or go
unpunished. The defense set up by him against the first charge upon
which he was acquitted would no longer be available, because at the
time of the commission of the crime charged in the second complaint, he
already knew that this defendant was a married woman and he continued
to have carnal knowledge of her. Even if the husband should pardon his
adulterous wife, such pardon would not exempt the wife and her
paramour from criminal liability for adulterous acts committed after the
pardon was granted because the pardon refers to previous and not to
subsequent adulterous acts
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional
Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City,
and TERESITA S. GANDIONCO, respondents.
A special civil action for certiorari, with application for injunction, to annul
(1) the Order of the respondent Judge, dated 10 December 1986,
ordering petitioner to pay support pendente lite to private
respondent (his wife) and their child, and (2) the Order of the same
respondent Judge, dated 5 August 1987, denying petitioner's motion to
suspend hearings in the action for legal separation filed against him by
private respondent as well as his motion to inhibit respondent Judge from
further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed
with the Regional Trial Court of Misamis Oriental, 10th Judicial District,
Branch 18, in Cagayan de Oro City, presided over by respondent Judge,
a complaint against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of damages.
This case was docketed as Civil Case No. 10636. On 13 October 1986,
private respondent also filed with the Municipal Trial Court, General
Santos City, a complaint against petitioner for concubinage, which
was docketed on 23 October 1986 as Criminal Case No. 15437111. On
14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal
separation, was filed by private respondent in the civil case for legal
separation. The respondent judge, as already stated, on 10
December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal
separation and the incidents consequent thereto, such as,
application for support pendente lite, should be suspended in view
of the criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of
the 1985 Rules on Criminal Procedure, which states:
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an
action for legal separation would be proper if an allegation of
concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to wit:
(c) After a criminal action has been commenced, no civil
action arising from the same offense can be prosecuted
and the same shall be suspended in whatever stage it
may be found until final judgment in the criminal
proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do,
that the civil action to be suspended, with or upon the filing of a criminal
action, is one which is "to enforce the civil liability arising from the
offense". In other words, in view of the amendment under the 1985
Rules on Criminal Procedure, a civil action for legal separation,
based on concubinage, may proceed ahead of, or simultaneously
with, a criminal action for concubinage, because said civil action
is not one "to enforce the civil liability arising from the offense"
even if both the civil and criminal actions arise from or are related to
the same offense.
Such civil action is one intended to obtain the right to live
separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of
offsprings, support, and disqualification from inheriting from the
innocent spouse, among others.
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to "civil actions to enforce the civil liability arising
from the offense" as contemplated in the first paragraph of Section 1 of
Rule 111-which is a civil action "for recovery of civil liability arising from
the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to
civil action for the recovery of civil liability arising from the offense
charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil
action arising from the offense."
As earlier noted this action for legal separation is not to recover
civil liability, in the main, but is aimed at the conjugal rights of the
spouses and their relations to each other, within the contemplation
of Articles 7 to 108, of the Civil Code.
Petitioner also argues that his conviction for concubinage will have to be
first secured before the action for legal separation can prosper or
succeed, as the basis of the action for legal separation is his alleged
offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be
issued upon proof by preponderance of evidence in the action for
legal separation. 3 No criminal proceeding or conviction is
necessary.
Contreras v. Macaraig
Appeal taken by Elena Contreras from a decision of the Juvenile and
Domestic Relations Court of Manila in Civil Case No. 00138 dismissing
her complaint upon the ground that the same was filed more than
one year from and after the date on which she had become
cognizant of the cause for legal separation.
"Plaintiff and defendant were married on March 16, 1952 in the Catholic
Church of Quiapo, Manila. Out of their marriage, three children were
born: Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig,
on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All
the children are in the care of plaintiff wife.
"Immediately before the election of 1961, defendant was employed as
manager of the printing establishment owned by plaintiff’s father known
as the MICO Offset. In that capacity, defendant met and came to know
Lily Ann Alcala, who placed orders with MICO Offset for propaganda
materials for Mr. Sergio Osmeña, who was then a Vice-Presidential
candidate. After the elections of 1961, defendant resigned from MICO
Offset to be a special agent at Malacañang. He began to be away often
and to come home very late. Upon plaintiff’s inquiry, defendant explained
that he was out on a series of confidential missions.
"In September, 1962, Avelino Lubos, driver of the family car, told
plaintiff that defendant was living in Singalong with Lily Ann Alcala.
When defendant, the following October, returned to the conjugal home,
plaintiff refrained from verifying Lubos’ report from defendant in her
desire not to anger nor drive defendant away. Although Plaintiff, in
April 1963, also received rumors that defendant was seen with a woman
who was on the family way on Dasmariñas St., she was so happy that
defendant again returned to the family home in May, 1963 that she once
more desisted from discussing the matter with him because she did not
wish to precipitate a quarrel and drive him away. All this while,
defendant, if and whenever he returned to the family fold, would only stay
for two or three days but would be gone for a period of about a month.
After plaintiff received reports that Lily Ann Alcala had given birth to a
baby, she sent Mrs. Felicisima Antioquia, her father’s employee, to verify
the reports. The latter was driven by Lubos to the house in Singalong and
between 5:00 and 6:00 o’clock that afternoon, she saw defendant was
carrying a baby in his arms. Mrs. Antioquia then went to the parish priest
of Singalong where she inquired about the child of Cesar Macaraig and
Lily Ann Alcala and she was given a copy of the baptismal certificate of
Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff
sometime in October, 1963.
"Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede
with defendant and to convince him to return to his family. Mr. Macaraig,
after talking to his son and seeing him with the latter’s child told plaintiff
that he could not do anything.
"In November, 1963, plaintiff requested the cooperation of defendant’s
older sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a
meeting at her home in Buendia between plaintiff and Lily Ann Alcala. Lily
Ann said she was willing to give up defendant as she had no desire to be
accused criminally but it was defendant who refused to break relationship
with her.
"In the early part of December, 1963, plaintiff, accompanied by her two
children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to
talk to defendant at his place of work on España Extension in front of
Quezon Institute. They repaired to Victoria Peak, a nearby restaurant,
where plaintiff pleaded with defendant to give up Lily Ann Alcala and to
return to the conjugal home, assuring him that she was willing to forgive
him. Defendant informed plaintiff that he could no longer leave Lily Ann
and refused to return to his legitimate family.
"On December 14, 1963, plaintiff instituted the present action for legal
separation. When defendant did not interpose any answer after he was
served summons, the case was referred to the Office of the City Fiscal of
Manila pursuant to the provisions of Article 101 of the Civil Code. After a
report was received from Asst. Fiscal Primitivo M. Peñaranda that he
believed that there was no collusion present, plaintiff was allowed to
present her evidence. Defendant has never appeared in this case."cralaw
virtua1aw library
The reasons relied upon by the trial court in dismissing the complaint are
set forth in the appealed decision as follows:
"Under the facts established by plaintiff’s evidence, although the infidelity
of the husband is apparent, yet the case will have to be dismissed.
Article 102 provides that an action for legal separation cannot be
instituted except within one year after plaintiff ‘became cognizant of
the cause.’ In the absence of a clear-cut decision of the Supreme Court
as to the exact import of the term ‘cognizant,’ the practical application of
said Article can be attended with difficulty. For one thing; that rules might
be different in case of adultery, which is an act, and for concubinage,
which may be a situation or a relationship.chanrobles virtuallawlibrary
"In respect of concubinage, the word ‘cognizant’ may not connote the
date when proof thereof sufficient to establish the cause before a court of
law is possessed. Otherwise, the one-year period would be meaningless
for practical purposes because all a wife would have to do would be to
claim that the necessary proof was secured only within one year before
the filing of the complaint. On the other hand, it should be hard to
concede that what the law envisages (and, in a way, encourages) is the
filing of a complaint within one year after the innocent spouse has
received information of the other’s infidelity, howsoever baseless the
report might be.
The Court believes that the correct rule lies between the two
extremes. At the time a wife acquired information, which can be
reasonably relied upon as true, that her husband is living in
concubinage with another woman, the one-year period should be
deemed to have started even if the wife shall not then be in
possession of proof sufficient to establish the concubinage before a
court of law. The one-year period may be viewed, inter alia, as an
allotted time within which proof should be secured. It is in the light of this
rule that the Court will determine whether or not plaintiff’s action for legal
separation has prescribed.
After her husband resigned from MICO Offset to be a special agent in
Malacañang, subsequent to the elections of 1961, he would seldom
come home. He alleged plaintiff’s suspicions with the explanation that he
had been away on ‘confidential missions.’ However, in September,
1962, Avelino Lubos, plaintiff’s driver, reported to plaintiff that
defendant was living in Singalong with Lily Ann Alcala. As a matter
of fact, it was also Lubos who brought Mrs. F. Antioquia (when plaintiff
had asked to verify the reports) to the house in Singalong where she saw
defendant, Lily Ann and the baby.
"The requirement of the law that a complaint for legal separation be filed
within one year after the date plaintiff became cognizant of the cause is
not of prescriptive nature, but is of the essence of the cause of action. It
is consonant with the philosophy that marriage is an inviolable social
institution so that the law provides strict requirements before it will allow a
disruption of its status.
"In the instant action, the Court has to find that plaintiff became cognizant
of defendant’s infidelity in September, 1962. Plaintiff made successive
attempts to induce the husband to amend his erring ways but failed. Her
desire to bring defendant back to the connubial fold and to preserve
family solidarity deterred her from taking timely legal action.
The only question to be resolved is whether the period of one year
provided for in Article 102 of the Civil Code should be counted, as far as
the instant case is concerned, from September 1962 or from December
1963. Computing the period of one year from the former date, it is
clear that plaintiff’s complaint filed on December 14, 1963 came a
little too late, while the reverse would be true if said period is
deemed to have commenced only in the month of December 1963.
The period of "five years from after the date when such cause occurred"
is not here involved.
Upon the undisputed facts it seems clear that, in the month of September
1962, whatever knowledge appellant had acquired regarding the infidelity
of her husband, that is, of the fact that he was then living in Singalong
with Lily Ann Alcala, was only through the information given to her by
Avelino Lubos, driver of the family car. Much as such hearsay information
had pained and anguished her, she apparently thought it best — and no
reasonable person may justifiably blame her for it — not to go deeper into
the matter herself because in all probability even up to that time,
notwithstanding her husband’s obvious neglect of his entire family,
appellant still cherished the hope — however forlorn — of his coming
back home to them. Indeed, when her husband returned to the conjugal
home the following October, she purposely refrained from bringing up the
matter of his marital infidelity "in her desire not to anger nor drive
defendant away" — quoting the very words of the trial court. True,
appellant likewise heard in April 1963 rumors that her husband was seen
with a woman on the family way on Dasmariñas street, but failed again to
either bring up the matter with her husband or make attempts to verify the
truth of said rumors, but this was due, as the lower court itself believed,
because "she was so happy that defendant again returned to the family
home in May 1963 that she once more desisted from discussing the
matter with him because she did not wish to precipitate a quarrel and
drive him away." As a matter of fact, notwithstanding all these painful
informations — which would not have been legally sufficient to make a
case for legal separation — appellant still made brave if desperate
attempts to persuade her husband to come back home. In the words of
the lower court, she "entreated her father-in-law, Lucilo Macaraig, to
intercede with defendant and to convince him to return to his family" and
also "requested the cooperation of defendant’s older sister, Mrs.
Enriqueta Majul" for the same purpose, but all that was of no avail. Her
husband remained obdurate.chanroblesvirtuallawlibrary:red

After a careful review of the record, We are persuaded that, in the eyes
of the law, the only time when appellant really became cognizant of
the infidelity of her husband was in the early part of December 1963
when, quoting from the appealed decision, the following happened —

"In the early part of December, 1963, plaintiff, accompanied by her

two children, Victoria and Alexander, and by Mrs. Leticia Lagronio
went to talk to defendant at his place of work on España Extension
in front of Quezon Institute. They repaired to Victoria Peak, a nearby
restaurant, where plaintiff pleaded with defendant to give up Lily Ann
Alcala and to return to the conjugal home, assuring him that she was
willing to forgive him. Defendant informed plaintiff that he could no longer
leave Lily Ann and refused to return to his legitimate family."cralaw
virtua1aw library

From all the foregoing We conclude that it was only on the occasion
mentioned in the preceding paragraph when her husband admitted to her
that he was living with and would no longer leave Lily Ann to return to his
legitimate family that appellant must be deemed to be under obligation to
decide whether to sue or not to sue for legal separation, and it was only
then that the legal period of one year must be deemed to have
commenced.
Lapuz v. Eufemio
JDRC: Dismissed complaint for legal separation on the ground of death of plaintiff, Carmen O. Lapuz
Sy, which occurred during the pendency of the case, abated the cause of action as well as the action
itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal
separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her; that they had
no child; that they acquired properties during their marriage; and that she
discovered her husband cohabiting with a Chinese woman named
Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She
prayed for the issuance of a decree of legal separation, which, among
others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent
Eufemio S. Eufemio alleged affirmative and special defenses, and, along
with several other claims involving money and other properties, counter-
claimed for the declaration of nullity ab initio of his marriage with
Carmen O. Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law and customs, with
one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence
on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a
vehicular accident on 31 May 1969. Counsel for petitioner duly
notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for
legal separation"1 on two (2) grounds, namely: that the petition for legal
separation was and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute
the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio
opposed the motion.
The first real issue in this case is: Does the death of the plaintiff before
final decree, in an action for legal separation, abate the action? If it
does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-
and-board separation of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse
(and no one else) to claim legal separation; and in its Article 108, by
providing that the spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of
one party to the action causes the death of the action itself — actio
personalis moritur cum persona.
... When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs
cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244,
Section 3). The action is absolutely dead
Marriage is a personal relation or status, created under
the sanction of law, and an action for divorce is a
proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a personal
nature. In the absence of a statute to the contrary, the
death of one of the parties to such action abates the
action, for the reason that death has settled the
question of separation beyond all controversy and
deprived the court of jurisdiction, both over the
persons of the parties to the action and of the subject-
matter of the action itself. For this reason the courts are
almost unanimous in holding that the death of either party
to a divorce proceeding, before final decree, abates the
action.
The same rule is true of causes of action and suits for separation and
maintenance).
A review of the resulting changes in property relations between
spouses shows that they are solely the effect of the decree of legal
separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code
provides: .
Art. 106. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no right to
any share of the profits earned by the partnership or
community, without prejudice to the provisions of article
176;
(3) The custody of the minor children shall be awarded to
the innocent spouse, unless otherwise directed by the
court in the interest of said minors, for whom said court
may appoint a guardian;
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be
revoked by operation of law.
From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of
property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to
inherit by intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very terms of
the Civil Code article, are vested exclusively in the persons of the
spouses; and by their nature and intent, such claims and disabilities
are difficult to conceive as assignable or transmissible. Hence, a
claim to said rights is not a claim that "is not thereby extinguished" after a
party dies, under Section 17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is
not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a
period of thirty (30) days, or within such time as may be
granted...
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87, of
the Revised Rules of Court:
SECTION 1. Actions which may and which may not be
brought against executor or administrator. No action upon
a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or
administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to
enforce a lien thereon, and actions to recover damages
for an injury to person or property, real or personal, may
be commenced against him.
Neither actions for legal separation or for annulment of marriage can be
deemed fairly included in the enumeration..
A further reason why an action for legal separation is abated by the
death of the plaintiff, even if property rights are involved, is that
these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come
into existence, so that before the finality of a decree, these claims
are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a
more radical and definitive separation; and the expected consequential
rights and claims would necessarily remain unborn.
Matubis v. Praxedes
Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed
with the Court of First Instance of Camarines Sur, on April 24, 1956, a
complaint for legal Separation and changed of surname against her
husband defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant spouse,
who interposed the defense that it was plaintiff who left the conjugal
home.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga,
Camarines Sur. For failure to agree on how they should live as husband
and wife, the couple, on May 30, 1944, agreed to live separately from
each other, which status remained unchanged until the present. On April
3, 1948, plaintiff and defendant entered into an agreement (Exhibit B),
the significant portions of which are hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as
legal husband and wife.
(b) That both without any interference by any of us, nor
either of us can prosecute the other for adultery or
concubinage or any other crime or suit arising from our
separation.
(c) That I, the, wife, is no longer entitled for any support from my
husband or any benefits he may received thereafter, nor I the
husband is not entitled for anything from my wife.
(d) That neither of us can claim anything from the other from the
time we verbally separated, that is from May 30, 1944 to the
present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one Asuncion
Rebulado and on September 1, 1955, said Asuncion gave birth to a child
who was recorded as the child of said defendant (Exh. C.).It was shown
also that defendant and Asuncion deported themselves as husband and
wife and were generally reputed as such in the community.
After the trial, without the defendant adducing any evidence, the court a
quo rendered judgment holding that the acts of defendant constituted
concubinage, a ground for legal separation. It however, dismissed the
complaint by stating:
While this legal ground exist, the suit must be dismissed for two
reasons, viz:
Under Art. 102 of the new Civil Code, an action for legal
separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and
within five years from and after the date when the cause
occurred. The plaintiff became aware of the illegal cohabitation of
her husband with Asuncion Rebulado in January, 1955. The
complaint was filed on April 24, 1956. The present action was,
therefore, filed out of time and for that reason action is
barred.
Article 100 of the new Civil Code provides that the legal
separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage. As shown in Exhibit B, the plaintiff
has consented to the commission of concubinage by her
husband. Her consent is clear from the following stipulations:
(b) That both of us is free to get any mate and live with as
husband and wife without any interference by any of us,
nor either of us can prosecute the other for adultery or
concubinage or any other crime or suit arising from our
separation. (Exh. B).
This stipulation is an unbridled license she gave her husband to
commit concubinage. Having consented to the concubinage, the
plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant
claiming that it was error for the lower court to have considered that the
period to bring the action has already elapsed and that there was consent
on the part of the plaintiff to the concubinage. The proposition, therefore,
calls for the interpretation of the provisions of the law upon which the
lower court based its judgment of dismissal.
Article 102 of the new Civil Code provides:
 An action for legal separation cannot be filed except within one
year from and after the date on which the plaintiff became
cognizant of the cause and within five years from after the date
when cause occurred.

The complaint was filed outside the periods provided for by the above
Article. By the very admission of plaintiff, she came to know the ground
(concubinage) for the legal separation in January, 1955. She instituted
the complaint only on April 24, 1956. It is to be noted that appellant did
not even press this matter in her brief.

The very wording of the agreement Exhibit B. gives no room for

interpretation other than that given by the trial judge. Counsel in his brief
submits that the agreement is divided in two parts. The first part having to
do with the act of living separately which he claims to be legal, and the
second part — that which becomes a license to commit the ground
for legal separation which is admittedly illegal. We do not share
appellant's view. Condonation and consent on the part of plaintiff are
necessarily the import of paragraph 6(b) of the agreement. The
condonation and consent here are not only implied but expressed.
The law (Art. 100 Civil Code), specifically provides that legal
separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or
concubinage. Having condoned and/or consented in writing, the plaintiff
is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the
complaint should be dismissed. He claims however, that the grounds for
the dismissal should not be those stated in the decision of the lower
court, "but on the ground that plaintiff and defendant have already been
legally separated from each other, but without the marital bond having
been affected, long before the effectivity of the new Civil Code"
(appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's
contention, because it is contrary to the evidence.

Conformably with the foregoing, we find that the decision appealed from
is in accordance with the evidence and the law on the matter. The same
is hereby affirmed, with costs.
Bugayong v. Ginez
This is a case for legal separation filed in the Court of First Instance of
Pangasinan wherein on motion of the defendant, the case was
dismissed. The order of dismissal was appealed to the Court of Appeals,
but said Tribunal certified the case to the Court on the ground that there
is absolutely no question of fact involved, the motion being predicated on
the assumption as true of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin
Bugayong, a serviceman in the United States Navy, was married to
defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan,
while on furlough leave. Immediately after their marriage, the couple lived
with their sisters who later moved to Sampaloc, Manila. After some time,
or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law
and informed her husband by letter that she had gone to reside with
her mother in Asingan, Pangasinan, from which place she later
moved to Dagupan City to study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from
Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous
writers(which were not produced at the hearing) informing him of alleged
acts of infidelity of his wife which he did not even care to mention. On
cross-examination, plaintiff admitted that his wife also informed him by
letter, which she claims to have destroyed, that a certain "Eliong" kissed
her. All these communications prompted him in October, 1951 to seek
the advice of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of
infidelity, and he was directed to consult instead the navy legal
department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his
wife whom he met in the house of one Mrs. Malalang, defendant's
godmother. She came along with him and both proceeded to the house
of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed
and lived for 2 nights and 1 day as husband and wife. Then they
repaired to the plaintiff's house and again passed the night therein
as husband and wife. On the second day, Benjamin Bugayong tried
to verify from his wife the truth of the information he received that
she had committed adultery but Leonila, instead of answering his
query, merely packed up and left, which he took as a confirmation of
the acts of infidelity imputed on her. After that and despite such belief,
plaintiff exerted efforts to locate her and failing to find her, he went to
Bacarra, Ilocos Norte, "to soothe his wounded feelings".
The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of
"acts of rank infidelity amounting to adultery", the cause of action, if any,
is barred by the statute of limitations; (2) That under the same
assumption, the act charged have been condoned by the plaintiff-
husband; and
The motion to dismiss was answered by plaintiff and the Court,
considering only the second ground of the motion to dismiss i.
e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for
review to the Court of Appeals, appellant's counsel maintaining that the
lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-
appellant; and
(c) In entertaining condonation as a ground for dismissal
inasmuch as same was not raised in the answer or in a motion to
dismiss.
As the questions raised in the brief were merely questions of law, the
Court of Appeals certified the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for
the part of the husband as defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot by either of
them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
 ART. 102. An action for legal separation cannot be filed except
within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and
after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the
alleged condonation of the charges of adultery that the plaintiff-husband
had preferred in the complaint against his wife, We will disregard the
other 2 grounds of the motion to dismiss, as anyway they have not been
raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground
for legal separation or, as stated in I Bouver's Law Dictionary, p. 585,
condonation is the "conditional forgiveness or remission, by a husband or
wife of a matrimonial offense which the latter has committed". It is to be
noted, however, that in defendant's answer she vehemently and
vigorously denies having committed any act of infidelity against her
husband, and even if We were to give full weight to the testimony of
the plaintiff, who was the only one that had the chance of testifying
in Court and link such evidence with the averments of the
complaint, We would have to conclude that the facts appearing on
the record are far from sufficient to establish the charge of adultery,
or, as the complaint states, of "acts of rank infidelity amounting to
adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to have received from his sister-in-
law Valeriana Polangco, which must have been too vague and indefinite
as to defendant's infidelity to deserve its production in evidence; nor the
anonymous letters which plaintiff also failed to present; nor the alleged
letter that, according to plaintiff, his wife addressed to him admitting that
she had been kissed by one Eliong, whose identity was not established
and which admission defendant had no opportunity to deny because the
motion to dismiss was filed soon after plaintiff finished his testimony in
Court, do not amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider
plaintiff's line of conduct under the assumption that he really
believed his wife guilty of adultery. What did he do in such state of
mind. In August, 1952, he went to Pangasinan and looked for his wife
and after finding her they lived together as husband and wife for 2 nights
and 1 day, after which he says that he tried to verify from her the truth of
the news he had about her infidelity, but failed to attain his purpose
because his wife, instead of answering his query on the matter, preferred
to desert him, probably enraged for being subjected to such humiliation.
And yet he tried to locate her, though in vain. Now, do the husband's
attitude of sleeping with his wife for 2 nights despite his alleged
belief that she was unfaithful to him, amount to a condonation of her
previous and supposed adulterous acts? In the order appealed from,
the Court a quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal
separation from your wife. Please tell this Hon. Court why you
want to separate from your wife? — A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told
me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth
day since my arrival she went to the house of our god-mother,
and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.) l awphil.net
Q. What happened next? — A. I persuaded her to come along
with me. She consented but I did not bring her home but brought
her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro
Bugayong? — A. One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro
Bugayong as husband and wife, did you slept together? — A.
Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you
sleep together also as husband and wife? — A. Yes, sir. (p. 19.
t.s.n.)
Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife?
— A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the
part of the husband as defined on the Penal Code.
and in its Art. 100 it says:
lawphil.net
The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to
the adultery or concubinage. Where both spouses are offenders,
legal separation cannot be claimed by either of them. Collusion
between the parties to obtain legal separation shall cause the
dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband,
especially those portions quoted above, clearly shows that there
was a condonation on the part of the husband for the supposed
"acts of rank infidelity amounting to adultery" committed by
defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along
with him, and the fact that she went with him and consented
to be brought to the house of his cousin Pedro Bugayong
and together they slept there as husband and wife for one
day and one night, and the further fact that in the second
night they again slept together in their house likewise as
husband and wife — all these facts have no other meaning in
the opinion of this court than that a reconciliation between
them was effected and that there was a condonation of the
wife by the husband. The reconciliation occurred almost ten
months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has
been held that "condonation is implied from sexual
intercourse after knowledge of the other infidelity. such acts
necessary implied forgiveness. It is entirely consonant with
reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt,
her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense
constituting a ground for divorce and bars the right to a
divorce. But it is on the condition, implied by the law when
not express, that the wrongdoer shall not again commit
the offense; and also that he shall thereafter treat the
other spouse with conjugal kindness. A breach of the
condition will revive the original offense as a ground for
divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme
courts of the different states of the U. S. that 'a single voluntary
act of sexual intercourse by the innocent spouse after discovery
of the offense is ordinarily sufficient to constitute condonation,
especially as against the husband'. (27 Corpus Juris Secundum,
section 61 and cases cited therein).
Although no acts of infidelity might have been committed by the
wife, We agree with the trial judge that the conduct of the plaintiff-
husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any
action for legal separation against the offending wife, because his
said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any cohabitation
with the guilty party, after the commission of the offense, and with the
knowledge or belief on the part of the injured party of its commission, will
amount to conclusive evidence of condonation; but this presumption may
be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute
condonation?
Single voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation, and where the
parties live in the same house, it is presumed that they live on
terms of matrimonial cohabitation (27 C. J. S., section 6-d).
De La Vina v. Villareal
This is an original petition presented in the Supreme Court. Its purpose is
to obtain an order declaring: (b) that the said respondent judge has
exceeded his power and authority in issuing, in said action, a preliminary
injunction against the said petitioner prohibiting him from alienating or
encumbering any part of the conjugal property during the pendency of the
action; and (c) that all the proceedings theretofore had in said court were
null and void.
Narcisa Geopano filed a complaint in the Court of First Instance of the
Province of Iloilo against Diego de la Viña, alleging: (4) that during their
marriage plaintiff and defendant had acquired property, real and
personal, the value of which was about P300,000 and all of which was
under the administration of the defendant; (5) that since the year 1913
and up to the date of the complaint, the defendant had been committing
acts of adultery with one Ana Calog, sustaining illicit relations with her
and having her as his concubine, with public scandal and in disgrace of
the plaintiff; (6) that because of said illicit relations, the defendant ejected
the plaintiff from the conjugal home, for which reason she was obliged to
live in the city of Iloilo, where she had since established her habitual
residence; and (7) that the plaintiff, scorned by her husband, the
defendant, had no means of support and was living only at the expense
of one of her daughters. Upon said allegations she prayed for (a) a
decree of divorce, (b) the partition of the conjugal property, and (c)
alimony pendente lite in the sum of P400 per month.
The defendant Diego de la Viña, petitioner herein, opposed the said
motion for a preliminary injunction, and, subsequently, demurred to the
complaint upon the ground that the court had no jurisdiction to take
cognizance of the cause, "nor over the person of the defendant."
The questions arising out of the foregoing facts are as follows:
1. May a married woman ever acquire a residence or domicile separate
from that of her husband during the existence of the marriage?
2. In an action for divorce, brought by the wife against her husband, in
which the partition of the conjugal property is also prayed for, may the
wife obtain a preliminary injunction against the husband restraining and
prohibiting him from alienating or encumbering any part of the conjugal
property during the pendency of the action?
The petitioner contends that the Court of First Instance of Iloilo had no
jurisdiction to take cognizance of the said action for divorce because the
defendant therein was a resident of the Province of Negros Oriental and
the plaintiff, as the wife of the defendant, must also be considered a
resident of the same province inasmuch as, under the law, the domicile
of the husband is also the domicile of the wife; that the plaintiff could not
acquire a residence in Iloilo before the arriage between her and the
defendant was legally dissolved.
This contention of the petitioner is not tenable. It is true, as a general of
law, that the domicile of the wife follows that of her husband. This rule is
founded upon the theoretic identity of person and of interest between the
husband and the wife, and the presumption that, from the nature of the
relation, the home of the one is that of the other. It is intended to
promote, strenghten, and secure their interests in this relation, as it
ordinarily exists, where union and harmony prevail. But the authorities
are unanimous in holding that this is not an absolute rule. "Under modern
laws it is clear that many exceptions to the rule that the domicile from of
the wife is determined by that of her husband must obtain. Accordingly,
the wife may acquire another and seperate domicile from that of her
husband where the theorical unity of husband and wife is is dissolved, as
it is by the institution of divorce proceedings; or where the husband has
given cause for divorce; or where there is a separation of the parties by
agreement, or a permanent separation due to desertion of the wife by the
husband or attributable to cruel treatment on the part of the husband; or
where there has been a forfeiture by the wife of the benefit of the
husband's domicile."
The case of Narcisa Geopano comes under one of the many exceptions
above-mentioned, to wit: "Where the husband has given cause for
divorce, the wife may acquire another and seperate domicile from
that of her husband." In support of this proposition there is a formidable
array of authorities. We shall content ourselves with illustrative quotations
from a few of them, as follows:
Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in
the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and,
therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile.
The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such
as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing,
she acquires a domicile in the latter state.
The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the
express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests,
and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise
the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but
not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)
 Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his
marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they The domicile of married women not legally separated from their
may have different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)
husband shall be that of the latter. This principle, maintained by
Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a the Supreme Court in numerous decisions, was modified in a
wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her
domicile or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.) particular case by the decision of June 17, 1887, and in
conformity with this last decision, three others were afterwards
The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in
cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by
rendered on October 13, 23, and 28, 1899, in all of which it is
judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.),
109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.) declared that when married women as well as children subject to
parental authority live, with the acquiescence of their husbands or
In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried fathers, in a place distinct from where the latter live, they have
to do what the petitioner in this case insists the respondent Narcisa their own independent domicile, which should be considered in
Geopano should have done. In that case the wife filed a bill of divorce in determining jurisdiction in cases of provisional support
a court in North Carolina, where her husband resided. She herself had guardianship of persons, etc. (1 Manresa, 233.)
not resided in that state for three years previous to the filing of the suit, as
required by the statute; but she claimed that the domicile of her husband If the wife can acquire a separate residence when her husband consents
was also her domicile and, inasmuch as her husband, the defendant, had or acquiesces, we see no reason why the law will not allow her to do so
been a resident of North Carolina for more than three years, she had also when, as alleged in the present case, the husband unlawfully ejects her
been a resident of that state during that time. The court dismissed the bill, from the conjugal home in order that he may freely indulge in his illicit
holding that the legal maxim that "her domicile is that of her husband" relations with another woman. Under no other circumstance could a
would not avail in the stead of an actual residence. The court said: wife be more justified in establishing a separate residence from that
of her husband. For her to continue living with him, even if he had
It is true that for many purpose the domicile of the husband is the permitted it, would have been a condonation of his flagrant breach
domicile of the wife, but it is not so for every purpose. The maxim of fidelity and marital duty. Furthermore, in this case no longer was
that the domicile of the wife follows that of the husband cannot be there an "identity of persons and of interest between the husband and the
applied to oust the court of its jurisdiction; neither, from party of wife." Therefore the law allowed her to acquire a separate residence. For,
reasons can it give jurisdiction. (P. 344.) "it would do violence to the plainest principle of common sense and
common justice of to call this residence of the guilty husband, where the
Turning to the Spanish authorities, we find that they agree with the wife is forbidden to come, . . . the domicile of the wife." (Champon vs.
American authorities in holding that the maxim or rule that the domicile of Champon, 40 La. Ann., 28.)
the wife follows that of the husband, is not an absolute one. Scaevola,
commenting on article 40 of the Civil Code (which is the only legal It is clear, therefore, that a married woman may acquire a residence or
provision or authority relied upon by the petitioner in this case), says: domicile separate from that of her husband, during the existence of the
marriage, where the husband has given cause for divorce.
Although article 64 of the Law of Civil Procedure provides that the
domicile of a married woman, not legally separated from her
husband, is that of the latter, yet, when the tacit consent of the
husband and other circumstances justify it, for the purpose of
determining jurisdiction, the habitual residence of the woman
should be considered as her domicile where her right may be
exercised in accordance with article 63. (Scaevola, Civil Code, p.
354.)

Manresa, commenting upon the same article (art. 40) says:

Araneta v. Concepcion
The main action was brought by Petitioner against his wife, one of
the Respondent herein, for legal separation on the ground of adultery. After
the issues were joined Defendant therein filed an omnibus petition to
secure custody of their three minor children, a monthly support of P5,000
for herself and said children, and the return of her passport, to
enjoin Plaintiff from ordering his hirelings from harassing and molesting
her, and to have Plaintiff therein pay for the fees of her attorney in the
action.
The petition is supported by her affidavit. Plaintiff opposed the petition,
denying the misconduct imputed to him and alleging that Defendant had
abandoned the children; alleging that conjugal properties were worth
chan robl esvirtualawlibrary
only P80,000, not one million pesos as alleged by Defendant; denying the
chan roblesvirtualawlibrary
taking of her passport or the supposed vexation, and contesting her right to
attorney’s fees. Plaintiff prayed that as the petition for custody and support
cannot be determined without evidence, the parties be required to submit
their respective evidence. He also contended that Defendant is not entitled
to the custody of the children as she had abandoned them and had
committed adultery, that by her conduct she had become unfit to educate
her children, being unstable in her emotions and unable to give the children
the love, respect and care of a true mother and without means to educate
them.
As to the claim for support, Plaintiff claims that there are no conjugal assets
and she is not entitled to support because of her infidelity and that she was
able to support herself. Affidavits and documents were submitted both in
support and against the omnibus petition.
The Respondent judge resolved the omnibus petition, granting the custody
of the children to Defendant and a monthly allowance of P2,300 for support
for her and the children, P300 for a house and P2,000 as attorney’s fees.
Upon refusal of the judge to reconsider the order, Petitionerfiled the
present petition for certiorari against said order and for mandamus to
compel the Respondent judge to require the parties to submit evidence
before deciding the omnibus petition. We granted a writ of preliminary
injunction against the order.
The main reason given by the judge, for refusing Plaintiff’s request that
evidence be allowed to be introduced on the issues, is the prohibition
contained in Article 103 of the Civil Code, which reads as follows:
chanroblesvirtuallawlibrary
“ART. 103. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition.”
Interpreting the spirit and policy of the provision the trial judge says: chanroblesvirtuallawlibrary
“This provision of the code is mandatory. This case cannot be tried within
the period of six months from the filing of the complaint. The court
understands that the introduction of any evidence, be it on the merits of the
case or on any incident, is prohibited. The law, up to the last minute, exerts
efforts at preserving the family and the home from utter ruin. Interpreting
the intent of said article, the court understands that every step it should
take within the period of six months above stated should be taken toward
reconciling the parties. Admitting evidence now will make reconciliation
difficult if not impossible. In this case the court should act as if nothing yet
had happened. The children must be given for custody to him or her who by
family custom and tradition is the custodian of the children. The court
should ignore that Defendant had committed any act of adultery or
the Plaintiff, any act of cruelty to his wife. The status quo of the family must
be restored as much as possible. In this country, unlike perhaps in any other
country of the globe, a family or a home is a petite corporation. The father is
the administrator who earns the family funds, dictates rules in the home for
all to follow, and protects all members of his family. The mother keeps
home, keeps children in her company and custody, and keeps the treasure
of that family. In a typical Filipino family, the wife prepares home budget
and makes little investment without the knowledge of her husband. A
husband who holds the purse is un-Filipino. He is shunned in Filipino
community. The court therefore, in taking action on petition No. 1 should be
guided by the above considerations.” (pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have elapsed since the
filing of the petition the question offered may not be allowed. It is,
however, believed that the reasons for granting the preliminary injunction
should be given that the scope of the article cited may be explained.
It is conceded that the period of six months fixed therein Article 103 (Civil
Code) is evidently intended as a cooling off period to make possible a
reconciliation between the spouses. The recital of their grievances against
each other in court may only fan their already inflamed passions against
one another, and the lawmaker has imposed the period to give them
opportunity for dispassionate reflection. But this practical expedient,
necessary to carry out legislative policy, does not have the effect of
overriding other provisions such as the determination of the custody of
the children and alimony and support pendente lite according to the
circumstances. (Article 105, Civil Code.) The law expressly enjoins that
these should be determined by the court according to the circumstances. If
these are ignored or the courts close their eyes to actual facts, rank in
justice may be caused.
Take the case at bar, for instance. Why should the court ignore the claim of
adultery by Defendantin the face of express allegations under oath to that
effect, supported by circumstantial evidence consisting of letter the
authenticity of which cannot be denied. And why assume that the children
are in the custody of the wife, and that the latter is living at the conjugal
dwelling, when it is precisely alleged in the petition and in the affidavits,
that she has abandoned the conjugal abode? Evidence of all these disputed
allegations should be allowed that the discretion of the court as to the
custody and alimony pendente lite may be lawfully exercised.
The rule is that all the provisions of the law even if apparently contradictory,
should be allowed to stand and given effect by reconciling them if
necessary.
Thus the determination of the custody and alimony should be given effect
and force provided it does not go to the extent of violating the policy of
the cooling off period. That is, evidence not affecting the cause of the
separation, like the actual custody of the children, the means conducive to
their welfare and convenience during the pendency of the case, these
should be allowed that the court may determine which is best for their
custody.
The writ prayed for is hereby issued and the Respondent judge or
whosoever takes his place is ordered to proceed on the question of custody
and support pendente lite in accordance with this opinion. The court’s order
fixing the alimony and requiring payment is reversed. Without costs.

Samosa v. Vamenta
The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code
prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of
the petition, would likewise preclude the court from acting on a motion for preliminary mandatory
injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the
Court of First Instance of Negros Oriental, answered the question in the affirmative, in view of the
absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in
no case be tried before six months shall have elapsed since the filing of the petition." He therefore
ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of
the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same
time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought
the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be
shown later there is justification for such a move on the part of petitioner. The respondent Judge ought
to have acted differently. The plea for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case No.
5274 in the sala of respondent Judge against respondent Clemente
Ramos for legal separation, on concubinage on the respondent's part
and an attempt by him against her life being alleged. She likewise
sought the issuance of a writ of preliminary mandatory injunction
for the return to her of what she claimed to be her paraphernal and
exclusive property, then under the administration and management
of respondent Clemente Ramos. There was an opposition to the
hearing of such a motion, dated July 3, 1971, based on Article 103 of the
Civil Code. It was further manifested by him in a pleading dated July 16,
1971, that if the motion asking for preliminary mandatory injunction were
heard, the prospect of the reconciliation of the spouses would become
even more dim. Respondent Judge ordered the parties to submit their
respective memoranda on the matter. Then on September 3, 1971,
petitioner received an order dated August 4, 1971 of respondent Judge
granting the motion of respondent Ramos to suspend the hearing of the
petition for a writ of mandatory preliminary injunction. That is the order
complained of in this petition for certiorari. Respondents were required to
answer according to our resolution of October 5, 1971. The answer was
filed December 2 of that year. Then on January 12, 1972 came a
manifestation from parties in the case submitting the matter without
further arguments.
After a careful consideration of the legal question presented, it is
the holding of this Court that Article 103 the Civil Code is not an
absolute bar to the hearing motion for preliminary injunction prior to
the expiration of the six-month period.
1. It is understandable why there should be a period during which the
court is precluded from acting. Ordinarily of course, no such delay is
permissible. Justice to parties would not thereby be served. The sooner
the dispute is resolved, the better for all concerned. A suit for legal
separation, however, is something else again. It involves a relationship
on which the law for the best reasons would attach the quality of
permanence. That there are times when domestic felicity is much less
than it ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the spouses. There
may be constant bickering. The loss affection on the part of one or both
may be discernible. Nonetheless, it will not serve public interest, much
less the welfare of the husband or the wife, to allow them to go their
respective ways. Where there are offspring, the reason for maintaining
the conjugal union is even more imperative. It is a mark of realism of the
law that for certain cases, adultery on the part of the wife and
concubinage on the part of the husband, or an attempt of one spouse
against the life of the other,1 it recognizes, albeit reluctantly, that the
couple is better off apart. A suit for legal separation lies. Even then, the
hope that the parties may settle their differences is not all together
abandoned. The healing balm of time may aid in the process. Hopefully,
the guilty parties may mend his or her ways, and the offended party may
in turn exhibit magnanimity. Hence, the interposition of a six-month
period before an action for legal separation is to be tried.
The court where the action is pending according to Article 103 is to
remain passive. It must let the parties alone in the meanwhile. It is
precluded from hearing the suit. There is then some plausibility for the
view of the lower court that an ancillary motion such as one for
preliminary mandatory injunction is not to be acted on. If it were
otherwise, there would be a failure to abide by the literal language of
such codal provision. That the law, however, remains cognizant of the
need in certain cases for judicial power to assert itself is discernible from
what is set forth in the following article. It reads thus: "After the filing of
the petition for legal separation, the spouse shall be entitled to live
separately from each other and manage their respective property. The
husband shall continue to manage the conjugal partnership property but
if the court deems it proper, it may appoint another to manage said
property, in which case the administrator shall have the same rights and
duties as a guardian and shall not be allowed to dispose of the income or
of the capital except in accordance with the orders of the court."2 There
would appear to be then a recognition that the question of
management of their respective property need not be left
unresolved even during such six-month period. An administrator
may even be appointed for the management of the property of the
conjugal partnership. The absolute limitation from which the court
suffers under the preceding article is thereby eased. The parties may in
the meanwhile be heard. There is justification then for the petitioner's
insistence that her motion for preliminary mandatory injunction should not
be ignored by the lower court. There is all the more reason for this
response from respondent Judge, considering that the husband whom
she accused of concubinage and an attempt against her life would in the
meanwhile continue in the management of what she claimed to be her
paraphernal property, an assertion that was not specifically denied by
him. What was held by this Court in Araneta v. Concepcion,3 thus
possesses relevance: "It is conceded that the period of six months fixed
therein Article 103 (Civil Code) is evidently intended as a cooling off
period to make possible a reconciliation between the spouses. The recital
of their grievances against each other in court may only fan their already
inflamed passions against one another, and the lawmaker has imposed
the period to give them opportunity for dispassionate reflection. But this
practical expedient, necessary to carry out legislative policy, does not
have the effect of overriding other provisions such as the determination of
the custody of the children and alimony and support pendente lite
according to the circumstance ... The law expressly enjoins that these
should be determined by the court according to the circumstances. If
these are ignored or the courts close their eyes to actual facts, rank
injustice may be caused."4 At any rate, from the time of the issuance
of the order complained of on August 4, 1971, more than six months
certainly had elapsed. Thus there can be no more impediment for the
lower court acting on the motion of petitioner for the issuance of a writ of
preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and

the order of respondent Court of August 4, 1971, suspending the hearing
on the petition for a writ of preliminary mandatory injunction is set aside.
Respondent Judge is directed to proceed without delay to hear the
motion for preliminary mandatory injunction. Costs against respondent
Clemente G. Ramos.
Lerma v. CA
Petitioner Lerma and respondent Diaz are husband and wife. They
married on May 19, 1951. On August 22, 1969 the petitioner filed a
complaint for adultery against the respondent and a certain Teodoro
Ramirez.
On November 18, 1969 the respondent filed with the lower court,
presided by Judge Leonor Ines Luciano, a complaint1 against the
petitioner for legal separation and/or separation of properties,
custody of their children2 and support, with an urgent petition for
support pendente lite for her and their youngest son, Gregory, who
was then and until now is in her custody. The respondent's
complaint for legal separation is based on two grounds:
concubinage and attempt against her life.
The petitioner filed his opposition to the respondent's application for
support pendente lite, setting up as defense the adultery charge he had
filed against the respondent.
Judge Luciano granted the respondent's application for
support pendente lite in an order dated December 24, 1969, which she
amended in an order dated February 15, 1970 to the following effect: (1)
the respondent was declared entitled to support pendente lite from
the date of the filing of the complaint; and (2) the amount of such
monthly support was reduced from P2,250.00 to P1,820.00.
On March 12, 1970 the petitioner filed with respondent Court of
Appeals a petition for certiorari and prohibition with preliminary injunction
to annul the aforementioned orders on the ground that they were issued
with grave abuse of discretion. The next day the respondent court gave
due course to the petition and issued a writ of preliminary injunction to
stop Judge Luciano from enforcing said orders.
The respondent court, in its decision of October 8, 1970, set aside the
assailed orders and granted the petitioner an opportunity to present
evidence before the lower court in support of his defense against
the application for support pendente lite.
The respondent moved to reconsider the decision on the ground
that the petitioner had not asked that he be allowed to present
evidence in the lower court. The respondent court, in its resolution of
January 20, 1971, set aside the decision of October 8 and rendered
another, dismissing the petition. This is now the subject of the instant
proceeding for review.
On January 23, 1974 the petitioner filed an urgent motion for a writ of
preliminary injunction and/or restraining order,; (4) that in connection with
the first adultery charge, the respondent and her co-accused, Teddy
Ramirez, had been convicted by the Court of First Instance of Rizal in its
decision rendered on September 26, 1972 and said judgment of
conviction was pending appeal in the Court of Appeals; (5) that Judge
Luciano issued an order dated January 19, 1974, ordering the petitioner
to pay the respondent the awarded support pendente lite within 15 days;
(3) that under Article 292 of the New Civil Code, which provides that
"during the proceedings for legal separation, or for annulment of
marriage, the spouses and children shall be supported from the conjugal
partnership property ...," such support is mandatory even if there be a
showing that the wife is guilty of adultery.
CA: Trial court did not commit grave abuse of discretion
The foregoing alleged errors refer to the two aspects, procedural and
substantive, of the disputed orders granting support pendente lite.
The question of whether or not the petitioner should be allowed to
present evidence in the lower court in support of that his wife had
committed adultery has become academic. The petitioner, in his motion
filed February 28, 1974 for reconsideration of the denial by this Court of
his petition for preliminary injunction, manifested that on September 26,
1972 the court of First Instance of Rizal decided the adultery case of the
respondent and found her and her co-accused, Teodoro Ramirez, guilty
of the charge, sentencing them to a term of imprisonment. This has not
been denied by the respondent. Neither is it denied that on March 30,
1970, as a result of the adulterous relations with Teodoro Ramirez for
which she was later on convicted, the said respondent gave birth
prematurely to a baby boy, who however died the same day. When the
respondent entered the hospital for delivery, she registered under the
assumed name of "Gloria Santos," and when the child died had it falsely
identified in the death certificate as the child of one Rosario R. Salita, a
close friend of hers. For the falsification thus committed Rosario E. Salita
was criminally charged and convicted, although the respondent herself
was acquitted on reasonable doubt. The petitioner's motion of February
28 also states, without denial on the part of the respondent, that after
Teodoro Ramirez another man, this time a Manila policeman by the name
of Jose Gochangco, became her paramour, as a consequence of which
criminal charges of adultery have been filed against them before the
Fiscal of Manila. Photographs of the two, showing them in intimate pose,
were submitted to this Court. Their veracity has not been disputed.
The legal issue posed by the foregoing facts is whether adultery is a
good defense against the respondent's claim for support pendente
lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife
against the husband for support, based upon a written contract, this
Court held that adultery is a good defense. This ruling was reiterated in
the subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma
v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v. Olayvar, 98 Phil.
52.
The respondent Court of Appeals, in upholding the questioned orders of
the lower court, relied on Article 292 of the Civil Code, which reads:
ART. 292. During the proceedings for legal
separation, or for annulment of marriage, the spouses
and children shall be supported from the conjugal
partnership property. After the final judgment of legal
separation, or of annulment of marriage, the obligation of
mutual support between the spouses ceases. However, in
case of legal separation, the court may order that the
guilty spouse shall give support to the innocent one, the
judgment specifying the terms of such order.
It is suggested that while adultery may be a defense in an action for
personal support, that is, support of the wife by the husband from his own
funds, it is not a defense when the support is to be taken from the
conjugal partnership property.
We do not see that the distinction is material in this case. In the first place
Article 292 is not in itself the source of the legal right to receive support. It
merely states that the support, not only of the spouses but also of the
children, shall be taken from the conjugal property during the pendency
of the legal separation proceeding. It does not preclude the loss of such
right in certain cases. In the second place, the said article
contemplates the pendency of a court action and, inferentially at
least, a prima facie showing that the action will prosper. For if the
action is shown to be groundless the mere filing thereof will not
necessarily set Article 292 in operation. This is also the sense of
Section 5 of Rule 61, supra, which requires, among other things, when
support pendente lite is applied for, that the court determine
provisionally "the probable outcome of the case."
Article 100 of the Civil Code provides that "the legal separation may be
claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage ... (and) where
both spouses are offenders, a legal separation cannot be claimed by
either of them ..."
In a provisional sense at least, within the meaning of Rule 61 (Section 5),
the probable failure of the respondent's suit for legal separation can be
foreseen since she is not an innocent spouse, having been convicted of
adultery by the Court of First Instance. It is true that the judgment of
conviction is on appeal in the Court of Appeals, but the same
undoubtedly satisfies the standard of provisional showing set by
the aforesaid Rule. If legal separation cannot be claimed by the guilty
spouse in the first place, the fact that an action for that purpose is filed
anyway should not be permitted to be used as a means to obtain
support pendente lite, which, without such action, would be denied on the
strength of the decisions of this Court recognizing adultery as a good
defense. Otherwise, as pointed out by the petitioner, all that an erring
spouse has to do to circumvent such defense would be to file a suit for
legal separation no matter how groundless.
The right to separate support or maintenance, even from the conjugal
partnership property, presupposes the existence of a justifiable cause for
the spouse claiming such right to live separately. This is implicit in Article
104 of the Civil Code, which states that after the filing of the petition for
legal separation the spouses shall be entitled to live separately from each
other. A petition in bad faith, such as that filed by one who is himself
or herself guilty of an act which constitutes a ground for legal
separation at the instance of the other spouse, cannot be
considered as within the intendment of the law granting separate
support. In fact under Article 303 of the same Code the obligation to give
support shall cease "when the recipient, be he a forced heir or not, has
committed some act which gives rise to disinheritance;" and under Article
921 one of the causes for disinheriting a spouse is "when the spouse has
given cause for legal separation." The loss of the substantive right to
support in such a situation is incompatible with any claim for
support pendente lite.
People v. Sensano The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any
CFI: Guilty of adultery. case, if he shall have consented or pardoned the offenders.

Ursula Sensano and Mariano Ventura were married on April 29, 1919.
They had one child. Shortly after the birth of his child, the husband
left his wife to go to the Province of Cagayan where he remained for
three years without writing to his wife or sending her anything for the
support of herself and their son. Poor and illiterate, without relatives
upon whom she could call, she struggled for an existence for
herself and her son until a fatal day when she met the accused
Marcelo Ramos who took her and the child to live with him. On the return
of the husband (in 1924), he filed a charge against his wife and
Marcelo Ramos for adultery and both were sentenced to four months and
one day of arresto mayor. The court, in its decision, stated the following:
"In the opinion of the court, the husband of the accused has been
somewhat cruel in his treatment of his wife having abandoned her as he
did." After completing her sentence, the accused left her paramour.
Apart from the fact that the husband in this case was assuming a mere
pose when he signed the complaint as the "offended" spouse, we have
come to the conclusion that the evidence in this case and his
conduct warrant the inference that he consented to the adulterous
relations existing between the accused and therefore he is not
authorized by law to institute this criminal proceeding.
We cannot accept the argument of the Attorney-General that the seven
years of acquiescence on his part in the adultery of his wife is explained
by his absence from the Philippine Islands during which period it was
impossible for him to take any action against the accused. There is no
merit in the argument that it was impossible for the husband to take any
action against the accused during the said seven years.

She thereupon appealed to this municipal president and the justice of the
peace to send for her husband so that she might ask his pardon and beg
him to take her back. At the house of the president she begged his
pardon and promised to be a faithful wife it he would take care her back.
He refused to pardon her to live with her and said she could go where
she wished, that he would have nothing more to do with her, and she
could do as she pleased. Abandoned for the second time, she and her
child went back to her coaccused Marcelo Ramos (this was in the
year 1924) and they have lived with him ever since. The husband,
knowing that she resumed living with her codefendant in 1924, did
nothing to interfere with their relations or to assert his rights as husband.
Shortly thereafter he left for the Territory of Hawaii where he remained for
seven years completely abandoning his said wife and child. On his return
to these Islands, he presented the second charge of adultery here
involved with the sole purpose, as he declared, of being able to
obtain a divorce under the provisions of Act No. 2710.

Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as

follows:

Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape and acts of lasciviousness. — The crimes of
adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
People v. Schneckenberger
On March 16, 1926, the accused Rodolfo A. Schneckenburger married
the compliant Elena Ramirez Cartagena and after seven years of martial
life, they agreed, for reason of alleged incompatibility of character, to live
separately each other and on May 25, 1935 they executed a document
which in part recites as follows:
On June 15, 1935, the accused Schneckenburger, without leaving the
Philippines, secured a decree of divorce from the civil court of
Juarez, Bravos District, State of Chihuahua, Mexico. On May 11, 1936,
he contracted another marriage with his co-accused, Julia Medel, in
the justice of the peace court of Malabon, Rizal, and since then they lived
together as husband and wife in the city of Manila. Because of the nullity
of the divorce decreed by the Mexico Court, complaint herein instituted
two actions against the accused, one for bigamy in the Court of
First Instance of Rizal and the other concubinage in the court of
First Instance of Manila. The first culminated in the conviction of the
accused for which he was sentenced to penalty of two months and one
day of arresto mayor. On the trial for the offense of concubinage accused
interposed the plea of double jeopardy, and the case was dismissed; but,
upon appeal by the fiscal, this Court held the dismissal before the trial to
be premature this was under the former procedure and without deciding
the question of double jeopardy, remanded the case to the trial court for
trial on the merits. Accused was convicted of concubinage through
reckless imprudence and sentenced to a penalty of two months and
one day of arresto mayor. Hence this appeal.
As the term "pardon" unquestionably refers to the offense after its
commission, "consent" must have been intended agreeably with its
ordinary usage, to refer to the offense prior to its commission. No
logical difference can indeed be perceived between prior and
subsequent consent, for in both instances as the offended party has
chosen to compromise with his/her dishonor, he/she becomes
unworthy to come to court and invoke its aid in the vindication of
the wrong. For instance, a husband who believers his wife another man
for adultery, is as unworthy, if not more, as where, upon acquiring
knowledge of the adultery after its commission, he says or does nothing.
We, therefore, hold that the prior consent is as effective as
subsequent consent to bar the offended party from prosecuting the
offense.
In this arriving at this conclusion we do not with to be misconstrued as
legalizing an agreement to do an illicit act, in violation of law. Our view
must be taken only to mean that an agreement of the tenor entered into
between the parties herein, operates, within the plain language and
manifest policy of the law, to bar the offended party from prosecuting the
offense. If there is anything morally condemnatory in a situation of his
character, the remedy lies not with us but with the legislative department
of the government. What the law is, not what it should be, defines the
limits of our authority.
Judgment is reversed and the accused is hereby acquitted, without costs.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent
which bars the offended party from instituting a criminal prosecution in
cases of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness is that which has been given expressly or impliedly after
the crime has been committed. We are now convinced that this is a
narrow view in way warranted by the language, as well as the manifest
policy, of the law. The second paragraph of article 344 of the Revised
Penal Code provides:

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
(Emphasis ours.)
Brown v. Yambao
On July 14, 1955, William H. Brown filed suit in the Court of First Instance
of Manila to obtain legal separation from his lawful wife Juanita Yambao.
He alleged under oath that while interned by the Japanese invaders,
from 1942 to 1945, at the University of Sto. Tomas internment camp, his
wife engaged in adulterous relations with one Carlos Field of whom
she begot a baby girl that Brown learned of his wifes misconduct only in
1945, upon his release from internment; that thereafter the spouse
lived separately and later executed a document (Annex A ) liquidating
their conjugal partnership and assigning certain properties to the
erring wife as her share. The complaint prayed for confirmation of
the liquidation agreement; for custody of the children issued of the
marriage; that the defendant be declared disqualified to succeed the
plaintiff; and for their remedy as might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the wife in
default, for failure to answer in due time, despite service of summons;
and directed the City Fiscal or his representatives to—
investigate, in accordance with Article 101 of the Civil Code,
whether or not a collusion exists between the parties and to
report to this Court the result of his investigation within fifteen (15)
days from receipt of copy of this order. The City Fiscal or his
representative is also directed to intervene in the case in behalf of
the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and
cross-examined plaintiff Brown. His questions (strenuously objected to by
Brown's counsel) elicited the fact that after liberation, Brown had lived
maritally with another woman and had begotten children by her.
Thereafter, the court rendered judgment denying the legal
separation asked, on the ground that, while the wife's adultery was
established, Brown had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of the new Civil
Code, providing:
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation or of
consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
that there had been consent and connivance, and because Brown's
action had prescribed under Article 102 of the same Code:
ART. 102 An action for legal separation cannot be filed except
within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and
after date when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in 1945
but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose
of Manila to act as counsel for the defendant, who defaulted.
The court erred in declaring that there was condonation of or
consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to his
marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal
acted as consel for the defaulting wife, "when the power of the
prosecuting officer is limited to finding out whether or not there is
collusion, and if there is no collusion, which is the fact in the case at
bar, to intervene for the state which is not the fact in the instant case,
the truth of the matter being that he intervened for Juanita Yambao, the
defendant-appellee, who is private citizen and who is far from being the
state.".
The argument is untenable. Collusion in matrimonial cases being "the act
of married persons in procuring a divorce by mutual consent, whether by
preconcerted commission by one of a matrimonial offense, or by failure,
in pursuance of agreement to defend divorce proceedings"
(Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section
500), it was legitimate for the Fiscal to bring to light any circumstances
that could give rise to the inference that the wife's default was calculated,
or agreed upon, to enable appellant to obtain the decree of legal
separation that he sought without regard to the legal merits of his case.
One such circumstance is obviously the fact of Brown's cohabitation with
a woman other than his wife, since it bars him from claiming legal
separation by express provision of Article 100 of the new Civil Code.
Wherefore, such evidence of such misconduct, were proper subject of
inquiry as they may justifiably be considered circumstantial evidence of
collusion between the spouses.

The policy of Article 101 of the new Civil Code, calling for the intervention
of the state attorneys in case of uncontested proceedings for legal
separation (and of annulment of marriages, under Article 88), is to
emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its
continuation or interruption cannot be made depend upon the parties
themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43;
Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is
consonant with this policy that the injury by the Fiscal should be allowed
to focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.

The court below also found, and correctly held that the appellant's action
was already barred, because Brown did not petition for legal separation
proceedings until ten years after he learned of his wife's adultery,
which was upon his release from internment in 1945. Under Article
102 of the new Civil Code, action for legal separation can not be filed
except within one (1) year from and after the plaintiff became cognizant
of the cause and within five years from and after the date when such
cause occurred. Appellant's brief does not even contest the correctness
of such findings and conclusion.

It is true that the wife has not interposed prescription as a defense.

Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest and it is the policy of our law that no such decree be
issued if any legal obstacles thereto appear upon the record.
Ocampo v. Florenciano
Action for legal separation by Jose de Ocampo against his wife Serafina,
on the ground of adultery. The court of first instance of Nueva Ecija
dismissed it. The Court of Appeals affirmed, holding there was
confession of judgment, plus condonation or consent to the adultery and
prescription.
We granted certiorari to consider the application of articles 100 and 101
of the New Civil Code, which for convenience are quoted herewith:
ART. 100.—The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
ART. 101.—No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order
the prosecuting attorney to inquire whether or not a collusion
between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation
was filed. As amended, it described their marriage performed in 1938,
and the commission of adultery by Serafina, in March 1951 with Jose
Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and
pursuant to Art. 101 above, directed the provincial fiscal to investigate
whether or not collusion existed between the parties. The fiscal examined
the defendant under oath, and then reported to the Court that there was
no collusion. The plaintiff presented his evidence consisting of the
testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez,
Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows
that "plaintiff and defendant were married in April 5, 1938 by a religious
ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband
and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was
betraying his trust by maintaining illicit relations with one Jose Arcalas.
Having found the defendant carrying marital relations with another
man plaintiff sent her to Manila in June 1951 to study beauty culture,
where she stayed for one year. Again, plaintiff discovered that while
in the said city defendant was going out with several other men,
aside from Jose Arcalas. Towards the end of June, 1952, when
defendant had finished studying her course, she left plaintiff and
since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having
illicit relations with another man by the name of Nelson Orzame.
Plaintiff signified his intention of filing a petition for legal
separation, to which defendant manifested her conformity provided
she is not charged with adultery in a criminal action. Accordingly,
plaintiff filed on July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on
account of the defendant's adultery with Jose Arcalas had prescribed,
because his action was not filed within one year from March 1951 when
plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must
agree with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in
the night of June 18, 1955, the husband upon discovering the illicit
connection, expressed his wish to file a petition for legal separation
and defendant readily agreed to such filing. And when she was
questioned by the Fiscal upon orders of the court, she reiterated her
conformity to the legal separation even as she admitted having had
sexual relations with Nelson Orzame. Interpreting these facts
virtually to mean a confession of judgment the Appellate Court
declared that under Art. 101, legal separation could not be decreed.
AS WE UNDERSTAND THE ARTICLE, IT DOES NOT EXCLUDE, AS
EVIDENCE, ANY ADMISSION OR CONFESSION MADE BY THE
DEFENDANT OUTSIDE OF THE COURT. IT MERELY PROHIBITS A
DECREE OF SEPARATION UPON A CONFESSION OF JUDGMENT.
Confession of judgment usually happens when the defendant appears in
court and confesses the right of plaintiff to judgment or files a pleading
expressly agreeing to the plaintiff's demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted
practically a confession of judgment, inasmuch as there is evidence of
the adultery independently of such statement, the decree may and
should be granted, since it would not be based on her confession,
but upon evidence presented by the plaintiff. What the law prohibits
is a judgment based exclusively or mainly on defendant's
confession. If a confession defeats the action ipso facto, any defendant
who opposes the separation will immediately confess judgment,
purposely to prevent it.
husband requests the Fiscal to prosecute. She could not have practiced
deception at such a personal risk.
In this connection, it has been held that collusion may not be inferred
from the mere fact that the guilty party confesses to the offense and thus
enables the other party to procure evidence necessary to prove it.
(Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs.
Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d]
688.).

The mere circumstance that defendants told the Fiscal that she "like also"
to be legally separated from her husband, is no obstacle to the
successful prosecution of the action. When she refused to answer the
complaint, she indicated her willingness to be separated. Yet, the law
does not order the dismissal. Allowing the proceeding to continue, it
takes precautions against collusion, which implies more than consent or
lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally
desires the separation and admitted the commission of the offense, it
should be doubly careful lest a collusion exists. (The Court of Appeals did
not find collusion.)
And proof that the defendant desires the divorce and makes no defense,
is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant
and take her home (after the latter had left him in 1952) constituted
condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas
and after he had discovered her dates with other men. Consequently, it
was not his duty to search for her to bring her home. Hers was the
obligation to return.

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or

to appear to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence
of a valid defense, for the purpose of enabling the other to
obtain a divorce. This agreement, if not express, may be implied
from the acts of the parties. It is a ground for denying the divorce.
(Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs.
Sandoz, 107 Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to

make it appear that a matrimonial offense had been
committed although it was not, or if the parties had connived to
bring about a legal separation even in the absence of grounds
therefor.

Here, the offense of adultery had really taking place, according to the
evidence. The defendant could not havefalsely told the adulterous acts to
the Fiscal, because her story might send her to jail the moment her
Matute v. Macadaeg
In an action for legal separation brought by Armando Medel against Rosario
Matute, upon the ground of adultery committed with his brother and her
brother-in-law, Ernesto Medel — which action was docketed as civil case
No. 14190 of the Court of First Instance of Manila — decision was, on
November 6, 1952, rendered by the latter, finding Rosario guilty of the
charge against her, decreeing said legal separation, and awarding to
Armando the custody of their four (4) minor children, Florencia, Manuel,
Carmelita and Benito, all surnamed Medel, then 12, 10, 8 and 4 years of age,
respectively. Thereafter, Armando went to the United States, leaving the
children in the City of Davao under the care of his sister Pilar Medel, in
whose house Rosario subsequently lived in order to be with her offspring.
Armando returned to the Philippines late in 1954. At the close of the then
current school year, during which the children were enrolled in a school in
Davao, or in March, 1955, they joined their father in Cebu. With his
permission, Rosario brought the children to Manila in April, 1955, to attend
the funeral of her father. Armando alleges that he consented thereto on
condition that she would return the children to him within two (2) weeks.
However, Rosario did not do so. Instead, on June 10, 1955, she filed, in said
civil case No. 14190, a motion the prayer of which is of the following
tenor:chanroble svirtuallawlibrary
“WHEREFORE, movant respectfully prays this Honorable Court, after due
hearing: chanrobl esvirtuallawlibrary
“(1) to issue an order awarding the custody of the above-named children to
the herein movant, their mother, in deference to the preference expressed
by the children (Sec. 6, Rule 100, Rules of Court); and chan roblesvirtualawlibrary
“(2) to order Armando Medel, father of the said minor children, to support
said children by paying their school fees and giving them a reasonable
allowance both items in an amount not less than P200 a month.”
Said motion was based upon the ground that the children — three (3) of
whom, namely, Florencia, Manuel and Carmelita, were then 16, 14 and 12
years of age, respectively — do not want to go back to their father, because
he “is living with a woman other than” their mother. Armando opposed this
motion and countered with a petition to declare and punish Rosario for
contempt of court, in view of her failure and alleged refusal to restore the
custody of their children to him. After due hearing the Court of First
Instance of Manila, presided over by Hon. Higinio B. Macadaeg, Judge,
issued an order, dated June 29, 1955, absolving Rosario from the charge of
contempt of court, she having secured Armando’s consent before bringing
the children to Manila, but denying her motion for their custody and
ordering her to deliver them to Armando within twenty-four (24) hours
from notice. The dispositive part of said order reads: chanroble svirtuallawlibrary
“IN VIEW OF THE FOREGOING, motion for the custody of the minor children,
Florencia, Manuel, Carmelita, and Benito, all surnamed Medel, is hereby
denied. Rosario Matute is hereby ordered to deliver to Armando Medel the
persons of the said minor children, within twenty-four (24) hours from
receipt of copy of this Order.
“Let copies of this Order be served immediately by the Sheriff of this Court,
not only on the lawyers appearing in this case, but also on the parties
themselves.”
Thereupon, Rosario instituted, against Armando and Judge Macadaeg, the
present action for certiorari and prohibition with preliminary injunction,
upon the ground that said order of June 29, 1955, had been issued with
grave abuse of discretion, and that there is no other plain, adequate and
speedy remedy in the ordinary course of law. The prayer in her petition, is
as follows: chanroblesvirtuallawlibrary
Briefly stated, Petitioner herein maintains that the children should be under
her custody, because: (1) she is their legitimate mother and they wish to chanroblesvirtuallawlibrary
stay with her, not their father Armando Medel; (2) three (3) of the chan r oble svirtualawlibrary
children are over ten (10) years of age, and, hence, their aforementioned
wish must, pursuant to Rule 100, section 6, of the Rules of Court, be
heeded, unless “the parent so chosen be unfit to take charge” of them “by
reason of moral depravity, habitual drunkenness, incapacity or poverty”; chan
(3) the act of infidelity of which she had been found guilty in the decision
roblesvirtualawlibrary
of November 6, 1952, does not involve “moral depravity”; (4) in any
chan roblesvirtualawlibrary
event, it is a thing of the past, not a present reality;
chan
(5) Respondent Armando Medel is now unfit to have the children under
roblesvirtualawlibrary
his care, for he is living maritally with a woman by the name of Paz Jesusa
Concepcion; and (6) although he had married the latter, after securing in
chan roble svirtualawlibrary
the United States a decree of divorce dissolving his marriage
with Petitioner herein, said decree is null and void and, accordingly, he is
guilty of bigamy.
In the present action, we do not deem it necessary to pass upon the merits
of such pretense. The case before us is one of certiorari and prohibition,
governed by sections 1 and 2 of Rule 67 of the Rules of Court, reading:
chanroblesvirtuallawlibrary
“SECTION 1. Petition for certiorari. — When any tribunal, board, or officer
exercising judicial functions, has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion and there is no appeal, nor
any plain, speedy, end adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board, or officer as
the law requires, with costs.
“SEC. 2. Petition for prohibition. — When the proceedings of any tribunal
corporation board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding
the Defendant to desist from further proceedings in the action or matter
specified therein, with costs.”
Pursuant to these provisions, neither the writ of certiorari nor that of
prohibition lies unless the act complained of has been performed “without
or in excess of” jurisdiction “or with grave abuse of discretion”. There is no
question but that Respondent Judge had jurisdiction to pass upon the issue
raised by Petitioner’s motion of June 10, 1955, for custody of the children,
and the petition of Respondent Medel, dated June 22, 1955, to
declare Petitioner guilty of contempt of court, to wit: whether said
chanroblesvirtuallawlibrary
custody should be retained by Respondent Medel, as adjudged in the
decision of November 6, 1952, or should be given to Petitioner herein.
Which ever alternative taken by Respondent Judge would not vitiate his
choice as being “without or in excess” of jurisdiction. Whatever mistakes, if
any, he may have committed in the appraisal of the situation — on which
we do not express our view — in determining the best solution to said issue
or which one of the litigants is best qualified or least disqualified to take
charge of the children, would, at best, constitute “merely errors of
judgment.” They are not “errors of jurisdiction”, but errors in the exercise of
the jurisdiction which the lower court admittedly had. Such errors do not
affect the legality or validity of the order complained of. They may be
reviewed by appeal, not by writ of certiorari or prohibition. (Comments on
the Rules of Court, by Moran, Vol. II, pp. 167 and 168).
Neither does the aforementioned order of June 29, 1955, involve a grave
abuse of discretion for it merely enforces the award made in the decision
of November 6, 1952, which is admittedly final and executory. It is true
that, insofar as it refers to the custody of the minor children, said decision
is never final, in the sense that it is subject to review at any time that the
Court may deem it for the best interest of said minors. It is no less true,
however, that, unless and until reviewed and modified, said award must
stand. No such modification having been made, at yet, RespondentJudge
had, not only the authority; but, also, the duty to execute and
chan roblesvirt ualawli brary
implement said award.
Furthermore, by virtue of said decision of November 6,
1952, Respondent had, admittedly, the custody of said
minors. Petitioner merely obtained his permission to bring them to Manila,
for the purpose of attending the funeral of their maternal grandfather,
which took place in April, 1955. Thus, Petitioner obtained and has the
physical possession of the minors in a precarious manner. She holds it in the
name, on behalf and by authority of Respondent Medel, whose agent she, in
effect, is. He may, therefore, demand their return at any time, and she is
bound to comply immediately with such demand. She cannot even question
his authority to make it, although she is free to seek a review of the order or
decision awarding the custody of the minors to him, and to ask that they be
placed under her charge.
Again, it is conceded that children over ten (10) years of age, whose
parents are divorced or living separately, may choose which parent they
prefer to live with, unless the parent chosen is unfit to take charge of their
care by reason of “moral depravity, habitual drunkenness, incapacity or
poverty” (Rule 100, section 6, Rules of Court). Without deciding whether
the adultery committed by herein Petitioner with her own brother-in-law
involves moral depravity, it is clear to our mind that the affirmative
assumption implicit in the order complained of cannot be characterized as
an “abuse of discretion”, much less a “grave” one.
Lastly, said order further declares:
chanroble svirtuallawlibrary
“ The facts remains that Defendant-movant is without means of livelihood
cralaw
and, according to her own admission, she lives on the charity of her
brothers. She has no home of her own to offer to her children, but only she
would shelter them under the roof of her brothers.”
and the substantial accuracy of this statement is not contested. We are not
prepared to hold, that a grave abuse of discretion was committed when the
lower court impliedly deduced, from these circumstances, that “poverty”,
among other causes, rendered Petitioner unfit to take charge of her
children or made it unwise to place them under her care.
Wherefore, without prejudice to such appropriate action as Petitioner may
deem fit to take for the purpose of securing a review of the order
of Respondent Judge of June 29, 1955, or a modification of the award made
in the decision of November 6, 1952, relative to the custody of the
children, or both, the petition is denied and the case dismissed. The writ of
preliminary injunction heretofore issued is hereby dissolved, with costs
against the Petitioner. It is SO ORDERED.
LAPERAL v.REPUBLIC
On May 10, 1960, Elisea Laperal filed in the Court of First Instance of
Baguio (Sp Proc. No. 433) a petition which reads:
2. That petitioner's maiden name is ELISEA LAPERAL; that on
March 24, 1939, she married Mr. Enrique R. Santamaria; that in a
partial decision entered on this Honorable Court on January 18,
1958, in Civil Case No. 356 of this Court, entitled 'Enrique R.
Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria
was given a decree of legal separation from her; that the said
partial decision is now final;
3. That during her marriage to Enrique R. Santamaria, she
naturally used, instead of her maiden name, that of Elisea L.
Santamaria; that aside from her legal separation from Enrique R.
Santamaria, she has also ceased to live with him for many years
now;
4. That in view of the fact that she has been legally separated
from Mr. Enrique R. Santamaria and has likewise ceased to live
with him for many years, it is desirable that she be allowed to
change her name and/or be permitted to resume using her
maiden name, to wit: ELISEA LAPERAL.
WHEREFORE, petitioner respectfully prayed that after the
necessary proceedings are had, she be allowed to resume using
her maiden name of Elisea Laperal.
The petition was opposed by the City Attorney of Baguio on the ground
that the same violates the provisions of Article 370 (should be 372) of the
Civil Code, and that it is not sanctioned by the Rules of Court.
In its decision of October 31, 1960, the court denied the petition for the
reason that Article 372 of the Civil Code requires the wife, even after she
is decreed legally separated from her husband, to continue using the
name and surname she employed before the legal separation. Upon
petitioner's motion, however, the court, treating the petition as one for
change of name, reconsidered its decision and granted the petition on
the ground that to allow petitioner, who is a businesswoman decreed
legally separated from her husband, to continue using her married name
would give rise to confusion in her finances and the eventual liquidation
of the conjugal assets. Hence, this appeal by the State.
The contention of the Republic finds support in the provisions of Article
372 of the New Civil Code which reads:
ART. 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation. (Emphasis supplied)
Note that the language of the statute is mandatory that the wife,
even after the legal separation has been decreed, shall continue
using her name and surname employed before the legal separation.
This is so because her married status is unaffected by the
separation, there being no severance of the vinculum. It seems to be
the policy of the law that the wife should continue to use the name
indicative of her unchanged status for the benefit of all concerned.
The appellee contends, however, that the petition is substantially for
change of her name from Elisea L. Santamaria, the one she has been
using, since her marriage, to Elisea Laperal, her maiden name, giving as
reason or cause therefor her being legally separated from the husband
Enrique R. Santamaria, and the fact that they have ceased to live
together for many years.
There seems to be no dispute that in the institution of these proceedings,
the procedure prescribed in Rule 103 of the Rules of Court for change of
name has been observed. But from the petition quoted in full at the
beginning of these opinion, the only reason relied upon for the change of
name is the fact that petitioner is legally separated from her husband and
has, in fact, ceased to live with him for many years. It is doubtful, to say
the least, whether Rule 103 which refers to change of name in general,
may prevail over the specific provisions of Article 372 of the New Civil
Code with regards to married women legally separated from their
husbands. Even, however, applying Rule 103 to this case, the fact of
legal separation alone — which is the only basis for the petition at bar —
is, in our opinion, not a sufficient ground to justify a change of the name
of herein petitioner, for to hold otherwise would be to provide an easy
circumvention of the mandatory provisions of Article 372.
It is true that in the second decision which reconsidered the first it is
stated that as the petitioner owns extensive business interests, the
continued used of her husband surname may cause undue confusion in
her finances and the eventual liquidation of the conjugal assets. This
finding is however without basis. In the first place, these were not the
causes upon which the petition was based; hence, obviously no
evidence to this effect had been adduced. Secondly, with the issuance of
the decree of legal separation in 1958, the conjugal partnership between
petitioner and her husband had automatically been dissolved and
liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more
occasion for an eventual liquidation of the conjugal assets.

WHEREFORE, the order of the lower court of December 1, 1960,

granting the petition, is hereby set aside and the petition dismissed.
Without costs. So ordered.
ATILANO
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.
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.
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.
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.
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.
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 that provided for by the former, yet and in such event We would see
family (Art. 111). He insists, however, that under the, Civil Code, which no plausible reason why she should be allowed any support from
provides: 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
ART. 299. The person obliged to give support may, at his option, moral hindrance to the exercise of the second alternative as elected by
fulfill his obligation either by paying the allowance fixed, or by him, the answer to the question presented by this appeal is certainly
receiving and maintaining in his house the person who has a right obvious.
to receive support. The latter alternative cannot be availed of in
this case there is a moral or legal obstacle thereto; Wherefore, the decision appealed from is hereby modified by giving the
defendant husband Chua Ching Beng the option of supporting his wife at
he is given the option to fulfill the said duty either by paying the allowance their conjugal dwelling apart from the home of the parents of the
as fixed by the Court or receiving and maintaining the person entitled husband. Should plaintiff wife refuse to abide by the terms of this
thereto in his house; and that he elects to perform his obligation by the decision, then the defendant-appellant shall be considered relieved from
second means allowed him by law. the obligation of giving any support to his wife. Without pronouncement
as to costs. It is so ordered.
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
Arroyo
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.
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.
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.

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
Cuaderno
As a consequence of a complaint for support filed by Lourdes Ramirez-
Cuaderno on August 14, 1957, against her husband Angel Cuaderno, the
Juvenile and Domestic Relations Court, after due hearing, rendered
judgment ordering the latter to give the plaintiff-wife a monthly
support of P150.00, from the date of the filing of the complaint, plus
attorney's fees, and to pay, the costs. On appeal by the husband to the
Court of Appeals, said decision was reversed and set aside "so that (in
the language of the court) appellant and appellee may again resume
cohabitation which they are hereby admonished to do as their duty
as husband and wife." The wife filed the instant petition for review of the
aforesaid ruling of the Court of Appeals.
It has been established that the couple were living separately since
November 17, 1956 when the husband, after having inflicted bodily
injuries on the wife in the course of a quarrel between them, took her
to her mother's house where the latter stayed until the institution of the
claim for support. The wife claimed maltreatment and abandonment by
the husband as basis therefor, whereas the husband, in resisting her
demand for maintenance, contended that it was she who left the
conjugal dwelling and, consequently, is not entitled thereto.
wife2 and not any legal mandate or court order. This is due to the
inherent characteristic and nature of marriage in this jurisdiction.
In the instant case, it is not disputed that the infliction of physical
injuries on the wife, by the husband gave rise to their separation. It
is likewise shown it was the husband who took his wife to her
parents' home where he left her. The fact that the wife allegedly
accepted money from her husband and desisted from accepting any
later, because according to the latter, she was demanding for more, only
indicates that even before the filing of the present case, the defendant-
husband was already providing something for the separate
maintenance. Considering that the wife has no income of her own, while
the husband has an employment, the sum of P150.00 fixed by the trial
court for the wife's monthly support does not seem to be unreasonable.
Needless to state that, as the separation has been brought about by
the husband and under the circumstances established during the
trial, the same shall subsist until a different situation between the
parties shall take place

The trial court, in granting the wife's demand, sustained the theory that
she was driven out of the dwelling or, at least prevented from
returning thereto by reason of defendant's maltreatment. The Court
of Appeals, on the other hand, while adopting the findings of the Juvenile
and Domestic Relations Court as to the husband's role in the incident that
led to the separation, and notwithstanding the declaration by the husband
during the hearing that "all the trouble she (the wife) has given me is
enough for me to turn my back to her," set aside the decision of the lower
court, on the ground that it believes that the conditions were such that
cohabitation between the spouses is not yet impossible. Thus, they
were admonished to live together as husband and wife.

We recognize the wisdom of the exhortation1 that in the interest of

society, and perhaps of the parties, courts should move, with caution in
providing separate maintenance for the wife, a situation which would be
an acknowledgement of the de facto separation of the spouses.
However, it would be taking an unrealistic view for us to compel or urge
them to live together when, at least for the present, they specially the
husband are speaking of impossibility of cohabitation. For while marriage
entitles both parties to cohabitation or consortium, the sanction therefor
is the spontaneous, mutual affection between husband and

Abella v. COMELEC
The main issue in these consolidated petitions centers on who is the
rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal
(G.R. No. 100739) who obtained the highest number of votes in the local
elections of February 1, 1988 and was proclaimed as the duly elected
governor but who was later declared by the Commission on Elections
(COMELEC) "... to lack both residence and registration qualifications for
the position of Governor of Leyte as provided by Art. X, Section 12,
Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg.
137 and Sec. 89, R.A. No. 179 and is hereby disqualified as such
Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who
obtained the second highest number of votes for the position of governor
but was not allowed by the COMELEC to be proclaimed as governor after
the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-
governor of the province of. Leyte.
The Court has ordered the consolidation of G.R. Nos 87721-30
and G.R. No. 88004 involving the same parties and the same
election in 1988 for the office of provincial governor of Leyte.
Challenged in the petitions for certiorari are the resolutions of the
respondent Commission on Elections dismissing the pre-
proclamation and disqualification cases filed by the herein
petitioners against private respondent Adelina Larrazabal.
Petitioner Benjamin P. Abella was the official candidate of the
Liberal Party for provincial governor of Leyte in the local election
held on February 1, 1988. The private respondent is the wife of
Emeterio V. Larrazabal, the original candidate of the Lakas ng
Bansa-PDP-Laban who was disqualified by the Commission on
Elections on January 18, 1988, for lack of residence. (G.R. No.
88004, Rollo, pp. 102-104) (He filed a petition for certiorari to
challenge this resolution. He, however, filed an urgent ex-parte
motion to withdraw petition which was granted in a resolution
dated January 21, 1988 and the case was dismissed. [G.R. No.
81313]) On January 31, 1988, the day before the election, she
filed her own certificate of candidacy in substitution of her
husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in
the morning, Silvestre de la Cruz, a registered voter of Tacloban
City, filed a petition with the provincial election supervisor of Leyte
to disqualify her for alleged false statements in her certificate of
candidacy regarding her residence. (Id., pp. 113-118) This was
immediately transmitted to the main office of the Commission on Elections, which could not function, however,
because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz
then came to this Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial
board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the
Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of
election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully
constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's
temporary restraining order of February 4, 1988. (Id. pp. 182-184)
In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the
canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate appeals
docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on March 7, 1988
in the disqualification case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law
Department of the COMELEC charging the private respondent with falsification and misrepresentation of her
residence in her certificate of candidacy. On March 22, 1988, the public respondent consolidated the pre-
proclamation and disqualification cases with the Second Division.
On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board of canvassers, mostly on
the ground that the objection raised were merely formal and did not affect the validity of the returns or the ballots, and ordered the
proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification
case was also dismissed by a 2-1 decision, and the matter was referred to the Law Department for 'preliminary investigation for possible
violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)
The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the COMELEC en banc on April 13, 1989,
with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on
April 18, 1989, another temporary restraining order to the provincial board of canvassers of Leyte to CEASE and DESIST from resuming
the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte.
The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on May 4, 1989, but
with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa
Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513)
Disposing of the consolidated petitions, this Court rendered judgment as follows:
1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed and the petition is
DISMISSED.
2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED and SET ASIDE.
Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the Omnibus
Election Code, with authority to maintain or lift our temporary restraining order of April 18, 1989, according to its own assessment of the
evidence against the private respondent.
The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may be ascertained and
installed without further delay. (p. 520)
In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her proclamation paving Larrazabal's
proclamation and her assumption to the Office of Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued.
On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor.
On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void and/or motion for
reconsideration and affirmed the second division's decision. In the same resolution, the Commission disallowed Abella's proclamation as governor of
Leyte.
Hence, these petitions.
We treat the various Comments as Answers and decide the petitions on their merits.
Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining
order on August 1, 1991.
xxx xxx xxx
... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and
DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991.
It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent Vice-Governor of Leyte Hon.
Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the governorship as contained in his telegraphic message,
pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo
 E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming
the office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204) Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. — A verified petition seeking to deny due course or to
In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC cancel a certificate of candidacy may be filed by any person
completely disregarded our pronouncement in G.R. No. 88004 in that exclusively on the ground that any material representation
instead of acting on SPC Case No. 88-546 under section 78 of the contained therein as required under Section 74 hereof is false.
Election Code, the COMELEC proceeded with a disqualification case not The petition may be filed at any time not later than twenty-five
contemplated in G.R. No. 88004. days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than
The argument is not meritorious. fifteen days before the election.

The questioned decision and resolution of the COMELEC conform with Section 6 of R.A. 6646 states as follows:
this Court's decision in G.R. No. 88004.
Effect of Disqualification Case. — Any candidate who has been
Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, declared by final judgment to be disqualified shall not be voted
petitioner in G.R. No. 100710 was allowed to intervene in the case) filed for, and the votes cast for him shall not be counted. If for any
a petition with the COMELEC to disqualify petitioner Larrazabal from reason a candidate is not declared by final judgment before an
running as governor of Leyte on the ground that she misrepresented her election to be disqualified and he is voted in such election, the
residence in her certificate of candidacy as Kananga, Leyte. It was Court or Commission shall continue with the trial and hearing of
alleged that she was in fact a resident of Ormoc City like her husband the action, inquiry, or protest and, upon motion of the complainant
who was earlier disqualified from running for the same office. The or any intervenor, may during the pendency thereof order the
COMELEC dismissed the petition and referred the case to its Law suspension of the proclamation of such candidate whenever the
Department for proper action on the ground that the petition was a evidence of his guilt is strong. ...
violation of Section 74 of the Election Code and, pursuant to it rules,
should be prosecuted as an election offense under Section 262 of the xxx xxx xxx
Code.
The above-stressed circumstances should explain the necessity
This Court reversed and set aside the COMELEC's ruling, to wit: for continuing the investigation of the private respondent's
challenged disqualification even after the election notwithstanding
The Court holds that the dismissal was improper. The issue of that such matter is usually resolved before the election.
residence having been squarely raised before it, it should not Independently of these circumstances, such proceedings are
have been shunted aside to the Law Department for a allowed by Section 6 of RA. 6646 if for any reason a candidate is
roundabout investigation of the private respondent's qualification not declared by final judgment before an election to be
through the filing of a criminal prosecution, if found to be disqualified ...
warranted, with resultant disqualification of the accused in case of
conviction. The COMELEC should have opted for a more direct In fine, the Court directed the COMELEC to determine the residence
and speedy process available under the law, considering the vital qualification of petitioner Larrazabal in SPC Case No. 88-546.
public interest involved and the necessity of resolving the Concomitant with this directive would be the disqualification of petitioner
question of the earliest possible time for the benefit of the Larrazabal in the event that substantial evidence is adduced that she
inhabitants of Leyte. really lacks the residence provided by law to qualify her to run for the
position of governor in Leyte.
In the view of the Court, the pertinent provision is Section 78 in
relation to Section 6 of R.A. No. 6646. In line with the Court's directive, the COMELEC conducted hearings in
SPC Case No. 88-546 to resolve the qualification of Larrazabal on the
basis of two (2) legal issues raised by Silvestre T. de la Cruz namely,
Larrazabal's lack of legal residence in the province of Leyte and her not
being a registered voter in the province, as required by Title II, Chapter I,
Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the
Constitution, to wit:
Sec. 42. Qualification. — (1) An elective local official must be a
citizen of the Philippines, at least twenty-three years of age on
election day, a qualified voter registered as such in the barangay,
municipality, city or province where he proposes to be elected, a
resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English,
Pilipino, or any other local language or dialect.
xxx xxx xxx
Sec. 12. Cities that are highly urbanized, as determined by law,
and component cities whose charters prohibit their voters from
voting for provincial elective officials, shall be independent of the
province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their
right to vote for elective provincial officials.
The position of petitioners De la Cruz and Abena was that respondent
Larrazabal is neither a resident nor a registered voter of Kananga, Leyte
as she claimed but a resident and registered voter of Ormoc City, a
component city of the province of Leyte but independent of the province
pursuant to Section 12, Article X of the Constitution thereby disqualifying
her for the position of governor of Leyte. They presented testimonial as
well as documentary evidence to prove their stance.
On the other hand, respondent Larrazabal maintained that she was a
resident and a registered voter of Kananga, Leyte. She, too presented
testimonial as well as documentary evidence to prove her stand.
The COMELEC ruled against the respondent, now petitioner Larrazabal.
In its questioned decision and resolution, the COMELEC found that
petitioner Larrazabal was neither a resident of Kananga, Leyte nor a
registered voter thereat. With these findings, the COMELEC disqualified
the petitioner as governor of the province of Leyte.
The petitioner, however, avers that the COMELEC decision is erroneous
when it relied on the provisions of the Family Code to rule that the
petitioner lacks the required residence to qualify her to run for the
position of governor of Leyte. She opines that under "the Election Law,
the matter of determination of the RESIDENCE is more on the principle
of INTENTION, the animus revertendi rather than anything else."
In this regard she states that ... "her subsequent physical transfer of
residence to Ormoc City thereafter, did not necessarily erased (sic) or
removed her Kananga residence, for as long as she had the ANIMUS
REVERTENDIevidenced by her continuous and regular acts of returning
there in the course of the years, although she had physically resided at
Ormoc City." (Petition, Rollo, p. 40)
As can be gleaned from the questioned decision, the COMELEC based
its finding that the petitioner lacks the required residence on the evidence
of record to the effect that despite protestations to the contrary made by
the petitioner, she has established her residence at Ormoc City from
1975 to the present and not at Kananga, Leyte. Her attempt to
purportedly change her residence one year before the election by
registering at Kananga, Leyte to qualify her to ran for the position of
governor of the province of Leyte clearly shows that she considers
herself already a resident of Ormoc City. In the absence of any evidence
to prove otherwise, the reliance on the provisions of the Family Code was
proper and in consonance with human experience. The petitioner did not
present evidence to show that she and her husband maintain separate
residences, she at Kananga, Leyte and her husband at Ormoc City. The
second division of the COMELEC in its decision dated February 14, 1991
states:
xxx xxx xxx
But there is the more fundamental issue of residence. The only
indications of a change of residence so far as respondent is
concerned are: the address indicated in the application for
cancellation filed by respondent indicating her postal address as
Kananga, Leyte, the annotation in her Voter's affidavit for Precinct
No. 15 that her registration was cancelled due to lack of
residence; the testimony of Anastacia Dasigan Mangbanag that
she entered into a contract of lease with option to buy with the
spouses Emeterio and Inday Larrazabal over two parcels of land
the witness owned in Mahawan, Kananga, Leyte; that she sees
the spouses in the leased house in Kananga, that she was
informed by Inday Larrazabal that the spouses had decided to
buy their property because she wanted to beautify the house for The Civil Code is clear that '[F]or the exercise of civil rights and
their residence. She attached as annex the written contract the fulfillment of civil obligations, the domicile of natural persons
signed by her and the spouses; and the testimony of Adolfo is the place of their habitual residence.
Larrazabal Exh. "10" cousin of the spouses that 'at a family
meeting ... the political plan of the Larrazabal clan was discussed, Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as
among which were (sic) the problem of Terry's residence in follows:
Ormoc City' and that it was decided in said meeting ... that Inday
Larrazabal, wife of Terry, will transfer her Ormoc Registration as Art. 68. The husband and wife are obliged to live together,
a voter to Kananga, Leyte (so) she will be able to vote for Terry observe mutual love, respect and fidelity, and render
and also help me in my candidacy; that they have been staying in mutual help and support.
Kananga, very often as they have properties in Lonoy and a
house in Mahawan.
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.
The references to residence in the documents of cancellation and The court may exempt one spouse from living with the
registration are already assessed for their evidentiary value in other if the latter should live abroad or there are other
relation to the documents themselves above. The question must valid and compelling reasons for the exemption. However,
therefore be addressed in relation to the testimony of Anastacia such exemption shall not apply if the same is not
Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the compatible with the solidarity of the family.
testimonies is that they leased properties in Mahawan, Leyte and
that they are seen in the house on the land leased. But the
Husband and wife as a matter of principle live together in one
contract of lease with option to purchase itself indicates as to
legal residence which is their usual place of abode. (COMELEC
where the legal residence of the Jarrazabal is. The pertinent
decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis
portion states:
supplied)
SPS EMETERIO V. LARRAZABAL AND ADELINA Y.
As regards the principle of ANIMUS REVERTENDI we ruled in the case
LARRAZABAL, both of legal age, Filipino, and residents of Ormoc
of Faypon v. Quirino, 96 Phil. 294 [1954]):
City, Philippines, hereinafter referred to as the LESSEES.
xxx xxx xxx
The acknowledgment also indicates that Emeterio V. Larrazabal
presented his Residence Certificate No. 155774914 issued in
Ormoc City. ... [M]ere absence from one's residence or origin-domicile-to
pursue studies, engage in business, or practice his avocation, is
not sufficient to constitute abandonment or loss of such
The testimony of Adolfo Larrazabal reenforces this conclusion. It
residence.' ... The determination of a persons legal residence or
admits, as of the second or third week of November, that the
domicile largely depends upon intention which may be inferred
residence of Emeterio Larrazabal was Ormoc City and that Inday
from his acts, activities and utterances. The party who claims that
Larrazabal was going to transfer her registration so she may be
a person has abandoned or left his residence or origin must show
able to vote for him.
and prove pre-ponderantly such abandonment or loss.
For the purpose of running for public office, the residence
xxx xxx xxx
requirement should be read as legal residence or domicile, not
any place where a party may have properties and may visit from
time to time. ... A citizen may leave the place of his birth to look for 'greener
pastures' as the saying goes, to improve his life, and that, of
course, includes study in other places, practice of his avocation,
 or engaging in business. When an election is to be held, the
citizen who left his birthplace to improve his lot may desire to
return to his native town to cast his ballot but for professional or
business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities;
so there he registers as voter as he has the qualifications to be
one and is not willing to give up or lose the opportunity to choose
the officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his
home, to his domicile or residence of origin, has not forsaken him.
... (at pp. 297-300)
In the instant case, there is no evidence to prove that the petitioner
temporarily left her residence in Kananga, Leyte in 1975 to pursue any
calling, profession or business. What is clear is that she established her
residence in Ormoc City with her husband and considers herself a
resident therein. The intention of animus revertendi not to abandon her
residence in Kananga, Leyte therefor, is nor present. The fact that she
occasionally visits Kananga, Leyte through the years does not signify an
intention to continue her residence therein. It is common among us
Filipinos to often visit places where we formerly resided specially so when
we have left friends and relatives therein although for intents and
purposes we have already transferred our residence to other places.
Anent the issue of whether or not the petitioner is a registered voter of
Kananga, Leyte, the petitioner insists that she is such a registered voter
based on the following antecedents: 1) She cancelled her registration in
Ormoc City on November 25, 1987, and 2) she then transferred her
registration to Kananga, Leyte on November 25, 1987 by registering
thereat and 3) she later voted on election day (February 1, 1988) in
Kananga, Leyte.
Despite the insistence of the petitioner, the evidence shows that her
supposed cancellation of registration in Ormoc City and transfer of
registration in Kananga, Leyte, is not supported by the records. As the
COMELEC stated:
The train of events, which led to respondent's g of her certificate
of candidacy on the basis of her registration started on November
25, 1987, when she allegedly filed all application for cancellation
of registration Exh. "2-B". Subsequent to this request, her voter's
affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was
annotated with the words 'cancelled upon application of the voter
due to transfer of residence.' Thereafter, she registered in
Precinct No. 17, Mahawan, Kananga, Leyte on November
28,1987 which registration was contained in Voter's Affidavit with
Serial No. 0190840-J The cancellation of registration was
submitted to the Board of Election Inspectors on January 9, 1988
(Revision Day) on the submission of the sworn application at 4:30
p.m. allegedly by a clerk from the Election Registrar's Office with
only the poll clerk and the third member because the Chairman of
the Board of Election Inspectors allegedly left earlier and did not
come back. Exh. "3-B".
We find the version pressed by respondent unworthy of belief.
The story is marked by so many bizarre cirumtances not
consistent with the ordinary course of events or the natural
behavior of persons. Among these are:
(1) The application for cancellation of registration by respondent
Adelina Y. Larrazabal happened to be misplaced by a clerk in the
Election Registrar's Office for Ormoc City so it was not sent to the
Board of Election Inspectors in a sealed envelope;
(2) The 'inadverterment' (sic) misplacement was discovered only
on January 9,1988;
(3) The voter's affidavit was delivered by itself without any
endorsement or covering letter from the Election Registrar or
anybody else;
(4) The election clerk delivered the application for cancellation
only towards the last hour of the revision day, allegedly at 4:30
P.M., January 9, 1988;
(5) All the members of the Board of Election Inspectors had
already signed the Minutes indicating that no revision of the
voter's list was made as of 5:00 PM
(6) The poll clerk and the third member prepared another minutes
stating that the election clerk had delivered the application for
cancellation at 4:30 P.M. without any reference to the minutes
they had previously signed;
(7) Emeterio Larrazabal, who was supposed to have registered in
Precinct 17, Mahawan, Kananga, was supposed to have filled up
an application for cancellation of his registration in Precinct No.
15, Ormoc City at Precinct 17 concurrent with his registration. His
application for cancellation was never submitted in evidence.
(8) The serial number of the voter's affidavits of the spouses
Larrazabal in Precinct No. 17 are far removed from the serial
numbers of the other new registrants in November 28, 1987 in the
same precinct.
The most telling evidence is the list of voters (Form 2-A), Exh.
"G", that the Chairman and the poll clerk had written in Part II of
the same, closed by the signatures of both officials showing that
there were only nine (9) additional registered voters in Precinct
17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie;
Limosnero Anita; Limosnero W; Pame Virginia; Savenario,
Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio.
This is consistent with the list of new voters after the November
28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte
submitted by the Election of Kananga to the National Central File
of the Commission per certification of the Chief, National Central
File Division on January 25, 1988 dated January 25, 1988, Exh.
'C'. The affidavits submitted by the Election Registrar to the
Commission could only have come from the Board of Election
Inspectors of Precinct No. 17, after the November 28, 1987
registration, for the Election Registrar could not have had the
affidavits of these new registrants apart from those supplied by
the Precinct itself. Why were not the affidavits of the Larrazabals
included? Was this part of the incredibly bizarre series of
inadvertence and neglect that spanned Ormoc City and
Kananga? This also explains the certification dated January 29,
1988, of the Election Registrar of Kananga that as of that date
Mrs. Adelina Larrazabal was not a registered voter in any of the'
precincts in Kananga. Exh. "L". It was only on February 15, 1988,
or two weeks after the election day that the same Registrar
certified for the first time that there were two voters lists, the first
without the names of the Larrazabals and the second, which
appeared only after February 1, submitted by the Chairman of the
Board for Precinct 17 which contained the spouses Larrazabals'
names.
It might also be stressed that one set of voter's list Exh. "G" had
the signature of both the Chairman, poll clerk and third member of
the board, while the one which appeared later which included the
names of the Larrazabal had the signature only of the Chairman.
Exh. "I".
From the certification of the National Central Files, it appears that
the Serial Nos. of the newly registered voters were as follows:
0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-
J 0189827-J 0189828-J 0189839-J The alleged registration of
Emeterio V. Larrazabal and Adelina Y. Larrazabal are
inexplicably effected through voter's affidavits with Serial Nos.
0190893J and 01 90840-J. These serial numbers are traced per
record of the Commission to Precinct No. 6, municipality of
Kananga, Leyte. Per official Project of precincts on file with the
Commission, Precinct No. 6 is a poblacion precinct located in
Kananga, Municipal High School Building. How these documents
came to be used in Precinct No. 17 in Barangay Mahawan and
only by the Larrazabals has never been explained.
It also takes a lot of straining to believe the story about the effort
to cancel registration on November 25, 1987, which application
surfaced before the Board of Election inspectors for Precinct No.
15, Ormoc City only on January 9, 1988, Revision Day. As
pointed out by Petitioner, it is absurd that it would only be on
Revision Day, normally set aside for the purpose of receiving
inclusion and exclusion orders from the courts, that the
application for cancellation would be coincidentally found and
delivered to the Board of Election Inspectors for Precinct 15.
Furthermore, the entire membership of the Board of Inspectors
for said precinct, signed a Minutes, Exh. "3-A" which indicates
that no order of inclusion or exclusion was received from any
court and that the board proceeded with the numbering of a total
229 voters for the precinct. The Minutes also indicates that the
Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly
prepared after Exh. "3-A" signed only by the poll clerk and third
member indicates that at 4:30 P.M. an unidentified clerk from the
Election Registrar's Office arrived with the application for
cancellation of Vilma Manzano and Adelina Larrazabal.
It also appears that on November 28, 1987, the Board of Election
Inspectors for Precinct 15, Ormoc City prepared the list of voters
for said precinct, Exh. 'N' where the name of Adelina Y.
Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is
listed as Voter No. 98. At the back of the list there is a certification
that there was no voter which was included by court order and
that to voters, one Montero and one Salvame were excluded by
virtue of such order. As of January 29, 1988, when the certified
true copy of the Voter's List for Precinct 15 was furnished the
petitioner, no additional entry was reflected on the list which
 would show what transpired on January 9, 1988, as alleged by Section 12, Article X of the Constitution provides:
the Election Registrar for Ormoc City and the poll clerk and third
member of the board of inspectors that a cancellation was Cities that are highly urbanized, as determined by law, and
effected. It taxes credulity therefore, to lend belief to Exh. "2-C", component cities whose charters prohibit their voters from voting
when was issued by the City Registrar for Ormoc only on for provincial elective officials, shall be independent of the
February 1, 1990, which for the first time showed handwritten province. The voters of component cities within a province, whose
annotations of cancellation of the registration of Adelina charters contain no such prohibition, shall not be deprived of their
Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. right to vote for elective provincial officials.
If this evidence did not exist at the time of the entry which
purports to have been on January 9, 1988, this evidence could Section 89 of Republic Act No. 179 creating the City of Ormoc provides:
have been used to confront within Carolina Quezon when she
testified and identified Exh. "N" on April 14, 1988. In fact if these
Election of provincial governor and members of the Provincial
entries indicating (sic) were made, they would have been evident
Board of the members of the Provincial Board of the Province of
in Exh. 'W. The failure to confront Quezon with the entries and
Leyte — The qualified voters of Ormoc City shall not be qualified
the late submission of Exh. "2-C" can only lead to two
and entitled to vote in the election of the provincial governor and
conclusions: these entries did not exist as of January 29, 1988
the members of the provincial board of the Province of Leyte.
when the certification of the list of voters was made and that they
were annotated in the voter's list after that date. This is consistent
with Exh. "P" which was issued on February 11, 1988. Relating therefore, section 89 of R.A. 179 to section 12, Article X of the
Constitution one comes up with the following conclusion: that Ormoc City
when organized was not yet a highly-urbanned city but is, nevertheless,
The relative weight of the parties' evidence supports petitioner's
considered independent of the province of Leyte to which it is
thesis that respondent was not a registered voter in Precinct No.
geographically attached because its charter prohibits its voters from
17, Brgy. Mahawan, Kananga, Leyte, and, that she and her
voting for the provincial elective officials. The question now is whether or
husband Emeterio Larrazabal continued to be registered voters in
not the prohibition against the 'city's registered voters' electing the
Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC
provincial officials necessarily mean, a prohibition of the registered voters
decision, pp. 22-27)
to be elected as provincial officials.
The Court is bound by these factual findings as they are supported by
The petitioner citing section 4, Article X of the Constitution, to wit:
substantial evidence:
Sec. 4. The President of the Philippines shall exercise general
In Aratuc v. Commission on Elections (88 SCRA 251), speaking
supervision over local governments. Provinces with respect to
of the need to preserve the 'independence and all the needed
component cities and municipalities and cities and municipalities
concomitant powers' of the Commission on Elections, Justice
with respect to component barangays, shall ensure that the acts
Antonio P. Barredo declared that it is but proper that the Court
of their component units are within the scope of their prescribed
should accord the greatest measures of presumption of regularity
powers and functions.
to its course of action ... to the end it may achieve its designed
place in the democratic fabric of our government ... (Abella v.
Larrazabal, supra) submits that "while a Component City whose charter prohibits its voters
from participating in the elections for provincial office, is indeed
independent of the province, such independence cannot be equated with
Failing in her contention that she is a resident and registered voter of
a highly urbanized city; rather it is limited to the administrative supervision
Kananga, Leyte, the petitioner poses an alternative position that her
aspect, and nowhere should it lead to the conclusion that said voters are
being a registered voter in Ormoc City was no impediment to her
likewise prohibited from running for the provincial offices." (Petition, p. 29)
candidacy for the position of governor of the province of Leyte.
The argument is untenable.
Section 12, Article X of the Constitution is explicit in that aside from
highly-urbanized cities, component cities whose charters prohibit their
voters from voting for provincial elective officials are independent of the
province. In the same provision, it provides for other component cities
within a province whose charters do not provide a similar prohibition.
Necessarily, component cities like Ormoc City whose charters prohibit
their voters from voting for provincial elective officials are treated like
highly urbanized cities which are outside the supervisory power of the
province to which they are geographically attached. This independence
from the province carries with it the prohibition or mandate directed to
their registered voters not to vote and be voted for the provincial elective
offices. The resolution in G.R. No. 80716 entitled Peralta v. The
Commission on Elections, et al. dated December 10, 1987 applies to this
case. While the cited case involves Olongapo City which is classified as a
highly urbanized city, the same principle is applicable.
Moreover, Section 89 of Republic Act 179, independent of the
constitutional provision, prohibits registered voters of Ormoc City from
voting and being voted for elective offices in the province of Leyte. We
agree with the COMELEC en banc that "the phrase 'shall not be qualified
and entitled to vote in the election of the provincial governor and the
members of the provincial board of the Province of Leyte' connotes two
prohibitions — one, from running for and the second, from voting for any
provincial elective official." (Resolution En Banc, p. 6)
The petitioner takes exception to this interpretation. She opines that such
interpretation is "wrong English" since nowhere in the provision is there
any reference to a prohibition against running for provincial elective
office. She states that if the prohibition to run was indeed intended, the
provision should have been phrased "Shall not be qualified TO RUN in
the election FOR provincial governor." A comma should have been used
after the word qualified and after the word "vote" to clearly indicate that
the phrase "in the election of the provincial governor" is modified
separately and distinctly by the words "not qualified" and the words "not
entitled to vote." (Petition, p. 19)
The Court finds the petitioner's interpretation fallacious.
In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court
interpreted Section 20 of Presidential Decree No. 957 in relation to the
conjunction and, to wit:
Time of Completion. — Every owner or developer shall construct
and provide the facilities, improvements, infrastructures and other
forms of development, including water supply and lighting
facilities, which are offered and indicated in the approved
subdivision or condominium plans. ...
The Court ruled:
We further reject petitioner's strained and tenuous application of
the called doctrine of last antecedent in the interpretation of
Section 20 and, correlatively, of Section 21. He would thereby
have the enumeration of 'facilities, improvements, infrastructures
and other forms of development' interpreted to mean that the
demonstrative Phrase 'which are offered and indicated in the
approved subdivision plans, etc,' refer only to 'other forms of
development' and not to 'facilities, improvements and
infrastructures.' While this subserves his purpose, such
bifurcation whereby the supposed adjectives phrase is set apart
from the antecedent words, is illogical and erroneous. The
complete and applicable rule is ad proximum antedecens flat
relationisi impediatursentencia (See Black's Law Dictionary, 4th
Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149,
153) Relative words refer to the nearest antecedent, unless it be
prevented by the context. In the present case, the employment of
the word 'and' between 'facilities, improvements, infrastructures'
and 'other forms of development,' far from supporting petitioner's
theory, enervates it instead since it is basic in legal hermeneutics
that and is not meant to separate words but is a conjunction used
to denote a joinder or union. (at pp. 81-83)
Applying these principles to the instant case, the
conjunction and between the phrase shall not be qualified and entitled to
vote refer to two prohibitions as ruled by the COMELEC in relation to the
demonstrative phrase "in the election of the provincial governor and the
members of the provincial board of the Province of Leyte."
Finally, the petitioner contends that the February 14, 1991 decision of the
COMELEC's second division is null and void on the ground that on that
date, the term of Commissioner Andres Flores, one of the signatories of
the majority opinion (vote was 2-1) had already expired on February 2,
1991. (Commissioner Flores was nominated by the President on January
30, 1988 and was confirmed by the Commission on Appointments on
February 15, 1988. His term of office was fixed by the President for three
years from February 15, 1988 to February 15, 1991.)
The petitioner postulates that the President has no power to fix the terms
of office of the Commissioners of the COMELEC because the
Constitution impliedly fixes such terms of office. With regards to
Commissioner Flores, the petitioner professes that Flores' term of three
(3) years expired on February 2, 1991 based in section 1(2), Article IX, C,
of the Constitution, to wit:
xxx xxx xxx
(2) The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for
seven years, two Members for five years, and the last Members
for three years, without reappointment. Any appointment to any
vacancy shall be only for the unexpired term of the predecessor.
In no case shall any Member be appointed or designated in a
temporary or acting capacity. In relation to the Transitory
Provision of the 1987 Constitution (Article XVIII) particularly
Section 15 thereof, to wit:
xxx xxx xxx
The incumbent Members of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit shall
continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or
become incapacitated to discharge The duties of their office or
appointed to a new term thereunder. In no case shall any
Member serve longer than seven years including service before
the ratification of this Constitution.
There is no need to pass upon this constitutional issue raised by the
petitioner. The Court ruled in the case of Alger Electric, Inc. v. Court of
Appeals (135 SCRA 37 [1985]):
xxx xxx xxx
... This Court does not decide questions of a constitutional nature
unless absolutely necessary to a decision of the case. If there
exists some other ground based on statute or general law or
other grounds of construction, we decide the case on a non-
constitutional determination. (See Burton v. United States, 196
U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175;
Berea College v. Kentucky 211 U.S. 45.) (at p. 45)
Even if we concede that Commissioner Flores' term expired on February
2, 1991, we fail to see how this could validate the holding of an elective
office by one who is clearly disqualified from running for that position and
the continued exercise of government powers by one without legal
authority to do so. The powers of this Court are broad enough to enjoin
the violation of constitutional and statutory provisions by public officers
especially where, as in this case, we merely affirm the decision of the
COMELEC en banc promulgated at a time when Commissioner Flores
was no longer a member.
Moreover, under the peculiar circumstances of this case, the decision of
the second division of COMELEC would still be valid under the de
facto doctrine.
Commissioner Flores was appointed for a three-year term from February
15, 1988 to February 15, 1991. In these three years he exercised his
duties and functions as Commissioner. Granting in the absence of a
statute expressly stating when the terms of the COMELEC Chairman and
members commence and expire, that his term expired on February 2,
1991 to enable a faithful compliance with the constitutional provision that
the terms of office in the COMELEC are on a staggered basis
commencing and ending at fixed intervals, his continuance in office until
February 15, 1991 has a color of validity. Therefore, all his official acts
from February 3, 1991 to February 15, 1991, are considered valid. The
Court ruled in the case of Leyte Acting Vice-Governor Aurelio D. Menzon
v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May
20, 1991:
And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint
the petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation.
There is no denying that the petitioner assumed the Office of the
Vice-Governor under color of a known appointment. As revealed
by the records, the petitioner was appointed by no less than the
alter ego of the President, the Secretary of Local Government,
after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government
 Regional Director Res Salvatierra. Concededly, the appointment
has the color of validity.
Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second
highest number of votes, next to Larrazabal in the local elections of
February 1, 1988 in the province of Leyte. The COMELEC en banc, after
affirming the February 14, 1991 decision of its second division
disqualifying arrazabal as governor disallowed Abella from assuming
position of governor in accordance with section 6, Republic Act No. 6646
and the rulings in the cases of Frivaldo v. Commission on Elections (174
SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA
1 [1989]).
Abella claims that the Frivaldo and Labo cases were misapplied by the
COMELEC. According to him these cases are fundamentally different
from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions
for a quowarranto filed under section 253 of the Omnibus Code,
contesting the eligibility of the respondents after they had been
proclaimed duly elected to the Office from which they were sought to be
unseated while SPC No. 88-546 which was filed before proclamation
under section 78 of the Omnibus Election Code sought to deny due
course to Larrazabal's certificate of candidacy for material
misrepresentations and was seasonably filed on election day. He,
therefore, avers that since under section 6 of Republic Act 6646 it is
provided therein that:
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes case for him shall not be
counted.
the votes cast in favor of Larrazabal who obtained the highest number of
votes are not considered counted making her a non-candidate, he, who
obtained the second highest number of votes should be installed as
regular Governor of Leyte in accordance with the Court's ruling in G.R.
No. 88004.
The petitioner's arguments are not persuasive.
While it is true that SPC No. 88-546 was originally a petition to deny due
course to the certificate of candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed the fact remains that the local elections
of February 1, 1988 in the province of Leyte proceeded with Larrazabal
considered as a bona-fide candidate. The voters of the province voted for
her in the sincere belief that she was a qualified candidate for the position
of governor. Her votes were counted and she obtained the highest
number of votes. The net effect is that the petitioner lost in the election.
He was repudiated by the electorate. In the Frivaldo and Labo cases, this
is precisely the reason why the candidates who obtained the second
highest number of votes were not allowed to assume the positions
vacated by Frivaldo the governorship of Sorsogon, and Labo, the position
of mayor in Baguio City. The nature of the proceedings therefore, is not
that compelling. What matters is that in the event a candidate for an
elected position who is voted for and who obtains the highest number of
votes is disqualified for not possessing the eligibility requirements at the
time of the election as provided by law, the candidate who obtains the
second highest number of votes for the same position can not assume
the vacated position. It should be stressed that in G.R. No. 88004, the
Court set aside the dismissal of SPC No. 88-546, and directed the
COMELEC to conduct hearings to determine whether or not Larrazabal
was qualified to be a candidate for the position of governor in the
province of Leyte. This is the import of the decision in G.R. No. 88004.
Thus, the Court ruled in the case of Labo, Jr. v. Commission on
Elections:
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v.
Commission on Elections, (137 SCRA 740) decided in 1985. In
that case, the candidate who placed second was proclaimed
elected after the votes for his winning rival, who was disqualified
as a turncoat and considered a non-candidate, were all disregard
as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then,
(Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with
three dissenting (Teehankee, Acting C.J., Abad Santos and
Melencio-Herrera, JJ.) and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was on official leave.
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo v.
Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring)
without any dissent, although one reserved his vote, (Makasiar,
J.) another took no part, (Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court
held:
The COMELEC has not acted without or in excess of jurisdiction
or in grave abuse of discretion.
WHEREFORE, the instant petitions are DISMISSED. The
questioned decision of the second division of the Commission on
Elections dated February 14, 1991 and the questioned Resolution
en banc of the Commission dated July 18, 1991 are hereby
AFFIRMED. The temporary restraining order issued on August 1,
1991 is LIFTED. Costs against the petitioners.

... it would be extremely repugnant to the basic concept of SO ORDERED.

the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of
votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which
have positively declared through their ballots that they do
not choose him.

Sound policy dictates that public elective offices are filled

by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one
can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd,
S 243, p. 676.)

The fact that the candidate who obtained the highest

number of votes is later declared to be disqualified or not
eligible for the office to which he was elected does not
necessarily entitle the candidate who obtained the second
highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or
non-eligible person may not be valid the vote the winner
into office or maintain him there. However the absence of
a statute which clearly asserts a contrary politics and
legislative policy on the matter, if the votes were cast in
the sincere belief that the candidate was alive, qualified,
or eligible, they should not be treated as stray, void or
meaningless. (at pp. 20-21)

In sum, the Court does not find any reason to reverse and set
aside the questioned decision and resolution of the COMELEC.
A question of first impression is before this Court in this litigation. We are
called upon to decide whether the ban on a donation between the spouses
during a marriage applies to a common-law relationship. 1 The plaintiff, now
appellant Cornelia Matabuena, a sister to the deceased Felix Matabuena,
maintains that a donation made while he was living maritally without benefit of
marriage to defendant, now appellee Petronila Cervantes, was void.
Defendant would uphold its validity. The lower court, after noting that it was
made at a time before defendant was married to the donor, sustained the
latter’s stand. Hence this appeal. The question, as noted, is novel in character,
this Court not having had as yet the opportunity of ruling on it. A 1954 decision
of the Court of Appeals, Buenaventura v. Bautista, 2 by the then Justice J. B. L.
Reyes, who was appointed to this Court later that year, is indicative of the
appropriate response that should be given. The conclusion reached therein
is that a donation between common-law spouses falls within the
prohibition and is "null and void as contrary to public policy." 3 Such a
view merits fully the acceptance of this Court. The decision must be
reversed.
In the decision of November 23, 1965, the lower court, after stating that in
plaintiff’s complaint alleging absolute ownership of the parcel of land in
question, she specifically raised the question that the donation made by Felix
Matabuena to defendant Petronila Cervantes was null and void under the
aforesaid article of the Civil Code and that defendant on the other hand did
assert ownership precisely because such a donation was made in 1956 and her
marriage to the deceased did not take place until 1962, noted that when the
case was called for trial on November 19, 1965, there was stipulation of facts
which it quoted. 4 Thus: "The plaintiff and the defendant assisted by their
respective counsels, jointly agree and stipulate: (1) That the deceased Felix
Matabuena owned the property in question; (2) That said Felix Matabuena
executed a Deed of Donation inter vivos in favor of Defendant, Petronila
Cervantes over the parcel of land in question on February 20, 1956, which
same donation was accepted by defendant; (3) That the donation of the land
to the defendant which took effect immediately was made during the common
law relationship as husband and wife between the defendant-done and the now
deceased donor and later said donor and done were married on March 28,
1962; (4) That the deceased Felix Matabuena died intestate on September 13,
1962; (5) That the plaintiff claims the property by reason of being the only
sister and nearest collateral relative of the deceased by virtue of an affidavit of
self-adjudication executed by her in 1962 and had the land declared in her
name and paid the estate and inheritance taxes thereon’"
The judgment of the lower court on the above facts was adverse to plaintiff. It
reasoned out thus: "A donation under the terms of Article 133 of the Civil Code
is void if made between the spouses during the marriage. When the donation
was made by Felix Matabuena in favor of the defendant on February
20, 1956, Petronila Cervantes and Felix Matabuena were not yet
married. At that time they were not spouses. They became spouses
only when they married on March 28, 1962, six years after the deed of
donation had been executed." 6
We reach a different conclusion. While Art. 133 of the Civil Code considers as
void a "donation between the spouses during the marriage," policy
considerations of the most exigent character as well as the dictates of morality
require that the same prohibition should apply to a common-law relationship.
We reverse.
1. As announced at the outset of this opinion, a 1954 Court of Appeals
decision, Buenaventura v. Bautista, 7 interpreting a similar provision of the old
Civil Code 8 speaks unequivocally. If the policy of the law is, in the language of
the opinion of the then Justice J.B.L. Reyes of that Court, "to prohibit donations
in favor of the other consort and his descendants because of fear of undue and
improper pressure and influence upon the donor, a prejudice deeply rooted in
our ancient law; ‘porque no se engañen despojandose el uno al otro por amor
que han de consuno [according to] the Partidas (Part IV, Tit. XI, LAW IV),
reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the
Pandects (Bk. 24, Tit. 1, De donat, inter virum et uxorem); then there is every
reason to apply the same prohibitive policy to persons living together as
husband and wife without the benefit of nuptials. For it is not to be doubted
that assent to such irregular connection for thirty years bespeaks greater
influence of one party over the other, so that the danger that the law seeks to
avoid is correspondingly increased. Moreover, as already pointed out by Ulpian
(in his lib. 32 ad Sabinum, fr. 1), ‘it would not be just that such donations
should subsist, lest the condition of those who incurred guilt should turn out to
be better.’ So long as marriage remains the cornerstone of our family law,
reason and morality alike demand that the disabilities attached to marriage
should likewise attach to concubinage.
2. It is hardly necessary to add that even in the absence of the above
pronouncement, any other conclusion cannot stand the test of scrutiny. It
would be to indict the framers of the Civil Code for a failure to apply a laudable
rule to a situation which in its essentials cannot be distinguished. Moreover, if
it is at all to be differentiated, the policy of the law which embodies a deeply-
rooted notion of what is just and what is right would be nullified if such
irregular relationship instead of being visited with disabilities would be
attended with benefits. Certainly a legal norm should not be susceptible to
such a reproach. If there is ever any occasion where the principle of statutory
construction that what is within the spirit of the law is as much a part of it as
what is written, this is it. Otherwise the basic purpose discernible in such codal
provision would not be attained. Whatever omission may be apparent in an
interpretation purely literal of the language used must be remedied by an
adherence to its avowed objective. In the language of Justice Pablo: "El
espiritu que informa la ley debe ser la luz que ha de guiar a los tribunales en la
aplicación de sus disposiciones.’’ 10
3. The lack of validity of the donation made by the deceased to defendant
Petronila Cervantes does not necessarily result in plaintiff having exclusive
right to the disputed property. Prior to the death of Felix Matabuena, the
relationship between him and the defendant was legitimated by their marriage
on March 28, 1962. She is therefore his widow. As provided for in the Civil
Code, she is entitled to one-half of the inheritance and the plaintiff, as the
surviving sister, to the other half. 11
WHEREFORE, the lower court decision of November 23, 1965 dismissing the
complaint with costs is reversed. The questioned donation is declared void,
with the rights of plaintiff and defendant as pro indiviso heirs to the property in
question recognized. The case is remanded to the lower court for its
appropriate disposition in accordance with the above opinion. Without
pronouncement as to costs.