1

[A.M. No. MTJ-00-1329. March 8, 2001] HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent. RESOLUTION DAVIDE, JR., C.J.: The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent Judge with gross ignorance of the law in a sworn ComplaintAffidavit filed with the Office of the Court Administrator on 12 May 1999. Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.i[1] Four children were born out of that marriage.ii[2] On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent Judge.iii[3] When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were separated. Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit.iv[4] According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him. After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely.

On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative. For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavitsv[5] of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code. We find merit in the complaint. Article 34 of the Family Code provides: No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

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4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.vi[6] Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were separated. Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void.vii[7] In fact, in his Comment, he stated that had he known that the late Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him. The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim ignorance of the law excuses no one has special application to judges,viii[8] who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal principles. ix[9] And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.x[10] ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000. SO ORDERED.

G.R. No. 133778

March 14, 2000

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent.

YNARES-SANTIAGO, J.:

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death?

Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December

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11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. could initiate an action for annulment of marriage. 2 Hence, this petition for review with this Court grounded on a pure question of law.

This petition was originally dismissed for noncompliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review. 4

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues:

(1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead;

(2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and void ab initio;

(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their father's death. 1

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. 5 A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of which renders the marriage void ab initio pursuant to Article 80(3) 7 in relation to Article 58. 8 The requirement and issuance of marriage license is the State's demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. 9 This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social institution." 10 Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State. 11 This is why the Family Code considers marriage as "a special contract of permanent union" 12 and case law considers it "not just an adventure but a lifetime commitment." 13

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who

However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76, 14 referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least

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five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant's name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. 15 To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. and wife for at least five years, and that we now desire to marry each other." 16 The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period?

There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation

Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that fiveyear period should be computed period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for

the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties

should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. 17 The Civil Code provides:

Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. . . .

5 to their wedding day. From the time Pepito's first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife".

Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. . . .

This is reiterated in the Family Code thus:

Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. . . .

Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. . . .

This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void, 18 subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery. 19 The law sanctions monogamy.

Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's marriage void after his death?

In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior

Contrary to respondent judge's ruling, Article 47 of the Family Code 20 cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime before the death of either party" is inapplicable. Article

6 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place 21 and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, 23 and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing.

Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him and

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. 24 "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." 25 "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. 26 But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage 27 and such absolute nullity can be based only on a final judgment to that effect. 28 For the

7 same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity.1wphi1 For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED.1wphi1.nt

i SO ORDERED.

Davide, Jr., C.J., Puno and Kapunan, JJ., concur. ii iii

REPUBLIC OF THE PHILIPPINES,

Petitioner,

G.R. No. 154380

- versus -

Present:

Davide, Jr., C.J.,

(Chairman),

Quisumbing,

Ynares-Santiago,

Carpio, and

Azcuna, JJ.

CIPRIANO ORBECIDO III,

Respondent.

Promulgated:

October 5, 2005

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

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law?

Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law.

IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6]

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.[7]

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8]

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while

in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. [10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes

naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.[12]

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. remarry.

A valid divorce is obtained abroad by the alien spouse capacitating him or her to

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence. [13]

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.[15] Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs. iv v vi

G.R. No. L-28248 March 12, 1975

LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO PERIDO, LETIA PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX VILLARUZ, EUFEMIA PERIDO, CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO, ROLANDO SALDE and EDUARDO SALDE, petitioners, vs. MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA PERIDO, ALICIA PERIDO, JOSEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.

Januario L. Jison, Jr. for petitioners.

Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:+.wph!1

This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the decision of the Court of First Instance of Negros Occidental in Civil Case No. 6529.

Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His first wife was Benita Talorong, with whom he begot three (3) children: Felix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, with whom he had five (5) children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio himself died in 1942, while his second wife died in 1943.

Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix Perido, is survived by his children Inocencia, Leonora, Albinio, Paulino,

Letia, Leticia, and Eufemia, all surnamed Perido. Nicanora Perido, another daughter of Felix, is also deceased, but is survived by two (2) sons, Rolando and Eduardo Salde.

Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo, and Amparo. Susano Perido, another son of Ismael, is dead, but survived by his own son George Perido.

Of Lucio Perido's five (5) children by his second wife, two are already dead, namely: Eusebio and Juan. Eusebio is survived by his children Magdalena Perido, Pacita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido, while Juan is survived by his only child, Juan A. Perido.

On August 15, 1960 the children and grandchildren of the first and second marriages of Lucio Perido executed a document denominated as "Declaration of Heirship and Extra-judicial Partition," whereby they partitioned among themselves Lots Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan, Occidental Negros.

Evidently the children belonging to the first marriage of Lucio Perido had second thoughts about the partition. On March 8, 1962 they filed a complaint in the Court of First Instance of Negros Occidental, which complaint was later amended on February 22, 1963, against the children of the second marriage, praying for the annulment of the so-called "Declaration of Heirship and ExtraJudicial Partition" and for another partition of the lots mentioned therein among the plaintiffs alone. They alleged, among other things, that they had been induced by the defendants to execute the document in question through misrepresentation, false promises and fraudulent means; that the lots which were partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Talorong, and that the five children of Lucio Perido with Marcelina Baliguat were all illegitimate and therefore had no successional rights to the estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations.

After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-Judicial Partition." However, it did not order the partition of the lots involved among the plaintiffs exclusively in view of its findings that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the lots, except Lot No. 458, were the exclusive properties of Lucio Perido; and that 11/12 of Lot No. 458 belonged to the conjugal partnership of Lucio Perido and his second wife, Marcelina Baliguat. The dispositive portion of the decision reads as follows:t.hqw

IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as the legitimate children and grandchildren and heirs of Lucio Perido and Benita Talorong: Felix Perido, deceased; grandchildren: Inocencia Perido, Leonora Perido, Albinio Perido, Paulino Perido, Letia Perido, Leticia Perido, Eufemia Perido; Nicanora Perido, deceased; great grandchildren:

Rolando Salde and Eduardo Salde; Ismael Perido, deceased; grandchildren: Consolacion Perido, Alfredo Perido, Susano Perido, deceased; great grandson: George Perido; Amparo Perido and Wilfredo Perido; and, Margarita Perido; (2) declaring the following as the legitimate children and grandchildren and heirs of Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased; grandchildren: Pacita Perido, Magdalena Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido; Juan B. Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia Perido; and Gonzalo Perido; (3) declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot No. 458 as exclusive properties of Lucio Perido so that each of them should be divided into eight (8) equal parts: 1/8 belongs to Felix Perido, but because of his death leaving eight (8) children, the same should be divided and alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to Leonora Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, married to Honorata Villasana; 1/64 to Paulino Perido, of age, married to Norma Villalba 1/64 to Letia Perido, of age, married to Bienvenido Balyac; 1/64 to Leticia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of age, single; 1/64 to Nicanora Perido, but because she is now dead the same should be divided and alloted as follows: 1/128 to Rolando Salde, of age, single; and 1/128 to Eduardo Salde, of age, single; 1/8 belongs to Ismael Perido, but because he is already dead leaving five children, the same should be divided and alloted as follows: 1/40 to Consolacion Perido, of age, widow; 1/40 to Alfredo Perido, of age married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already dead with one son, the same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs to Margarita Perido, of age, widow; 1/8 belongs to Eusebio Perido, but because he is already dead with seven children, the same should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age, single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to Alicia Perido, of age, married to Isaias Ruiz; 1/56 goes to Josefina Perido, of age, married to Leopoldo Doloroso; 1/56 goes to Fe Perido, of age, single; 1/56 goes to Teresa Perido, of are single; 1/56 goes to Luz Perido, of age, married to Fidel de la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead with one child, the same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to Maria Perido. of age, married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to Gonzalo Perido, of age, married to Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458 as conjugal partnership property of Lucio Perido and Marcelina Baliguat, which should be divided and alloted as follows: 11/24 goes to Lucio Perido to be divided into eight (8) equal shares and 11/24 goes to Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for each of the children and again to be divided by the children of each child now deceased; (6) declaring Fidel Perido owner of 1/12 share in Lot 458 to be divided among his heirs to be determined accordingly later; and (6) declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the defendants, without costs and without adjudication with respect to the counterclaim and damages, they being members of the same family, for equity and justice.

The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1) in declaring that Eusebio Perido, Juan Perido, Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his second wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was the exclusive owner of Lots Nos. 471, 506, 511, 509, 513-Part, 807, and 808 of Cadastral Survey of Himamaylan, Negros Occidental, and in not declaring that said lots were the conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and (3) in holding that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina Baliguat.

Finding no reversible error in the decision of the lower court, the Court of Appeals affirmed it in toto. The appellants moved to reconsider but were turned down. Thereupon they instituted he instant petition for review reiterating in effect the assignments of error and the arguments in the brief they submitted to the appellate court.

The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners insist that said children were illegitimate on the theory that the first three were born out of wedlock even before the death of Lucio Perido's first wife, while the last two were also born out of wedlock and were not recognized by their parents before or after their marriage. In support of their contention they allege that Benita Talorong died in 1905, after the first three children were born, as testified to by petitioner Margarita Perido and corroborated by petitioner Leonora Perido; that as late as 1923 Lucio Perido was still a widower, as shown on the face of the certificates of title issued to him in said year; and Lucio Perido married his second wife, Marcelina Baliguat, only in 1925, as allegedly established through the testimony of petitioner Leonora Perido.

The petition cannot be sustained. The Court of Appeals found that there was evidence to show that Lucio Perido's wife, Benita Talorong, died during the Spanish regime. This finding conclusive upon us and beyond our power of review. Under the circumstance, Lucio Perido had no legal impediment to marry Marcelina Baliguat before the birth of their first child in 1900.

With respect to the civil status of Lucio Perido as stated in the certificates of title issued to him in 1923, the Court of Appeals correctly held that the statement was not conclusive to show that he was not actually married to Marcelina Baliguat. Furthermore, it is weak and insufficient to rebut the presumption that persons living together husband and wife are married to each other. This presumption, especially where legitimacy of the issue is involved, as in this case, may be overcome only by cogent proof on the part of those who allege the illegitimacy. In the case of Adong vs. Cheong Seng Gee 1 this Court explained the rationale behind this presumption, thus: "The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would he living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage."

While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the uncorroborated testimony of petitioner Leonora Perido on the matter. The reason is obvious. Said witness, when asked why she knew that Marcelina Baliguat was married to Lucio Perido only in 1925, merely replied that she knew it because "during the celebration of the marriage by the Aglipayan priest (they) got flowers from (their) garden and

placed in the altar." Evidently she was not even an eyewitness to the ceremony.

In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and Marcelina Baliguat were born during their marriage and, therefore, legitimate.

The second assignment of error refers to the determination of whether or not Lots Nos. 471, 506, 511, 509-513-Part, 807 and 808 were the exclusive properties of Lucio Perido. In disposing of the contention of the petitioners that said lots belong to the conjugal partnership of spouses Lucio Perido and Benita Talorong, the Court of Appeals said:t.hqw

... We cannot agree again with them on this point. It is to be noted that the lands covered by the certificates of title (Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence showing that the lands were inherited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20, 1964). In other words, they were the exclusive properties of the late Lucio Perido which he brought into the first and second marriages. By fiat of law said Properties should be divided accordingly among his legal heirs.

The petitioners take exception to the finding of the appellate court that the aforementioned lots were inherited by Lucio Perido from his grandmother and contend that they were able to establish through the testimonies of their witnesses that the spouses Lucio Perido and Benita Talorong acquired them during their lifetime. Again, the petitioners cannot be sustained. The question involves appreciation of the evidence, which is within the domain of the Court of Appeals, the factual findings of which are not reviewable by this Court.

The third assignment of error is with regard to the ruling of the Court of Appeals sustaining the finding of the trial court that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and his second wife, Marcelina Baliguat. Said the appellate court:t.hqw

With respect to Lot No. 458 which is now covered by Original Certificate of Title No. 21769 issued in 1925 the same should be considered conjugally owned by Lucio Perido and his second wife, Marcelina Baliguat. The finding of the lower court on this point need not be disturbed. It is expressly stated in the certificate of title (Exh. L) that Lucio Perido, the registered owner, was married to Marcelina Baliguat unlike in the previous land titles. If the law presumes a property registered in the name of only one of the spouses to be conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores, 48 Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the document recites that the spouse in whose name the land is registered is married to somebody else, like in the case at bar. It appearing that the legal presumption that the No. 458 belonged to the conjugal partnership had not been overcome by clear proofs to the contrary, we are constrained to rule, that the same is the conjugal property of the deceased spouses Lucio Perido and Marcelina Baliguat.

In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was the conjugal property of spouses Lucio Perido and his first wife, Benita Talorong, and that the purchase price of the additional 5/12 of said lot came from the proceeds of sale of a lot allegedly belonging to Lucio Perido and his three children of the first marriage. As in the second assignment of error, the issue raised here also involves appreciation of the evidence and, consequently, the finding of the appellate court on the matter is binding on this Court. Indeed, a review of that finding would require an examination of all the evidence introduced before the trial court, a consideration of the credibility of witnesses and of the circumstances surrounding the case, their relevancy or relation to one another and to the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the distinction between an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the latter procedure has been established. 2

WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioners.

Castro, Teehankee, Makasiar and Esguerra, JJ., concur.1wph1.t

vii viii ix

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

February 28, 1957

G.R. No. L-10016 THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle, vs. PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for appellee. Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant and appellant.

Labrador, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant guilty of bigamy. The facts are not disputed and, as found by the trial court, are as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima, contracted marriage with a certain Maria Gorrea in the Philippine Independent Church in Cebu (Exhibits 1 and 1-A). While his marriage with Maria Gorrea was subsisting, the accused under the name of Proceso Aragon, contracted a canonical marriage with Maria Faicol on August 27, 1934, in the Santa Teresita Church in Iloilo City.

The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then an employee of the Office of the Municipal Treasurer of Iloilo, and a certain Emilio Tomesa, a clerk in the said office (Exhibit A and testimonies of Eulogio Giroy and complainant Maria Faicol). After the said marriage, the accused and Maria Faicol established residence in Iloilo. As the accused was then a traveling salesman, he commuted between Iloilo where he maintained Maria Faicol, and Cebu where he maintained his first wife, Maria Gorrea died in Cebu City on August 5, 1939 (Exhibit 2). After Maria Gorreas death, and seeing that the coast was dear in Cebu, the accused brought Maria Faicol to Cebu City in 1940, where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life in Cebu, for it appears that in 1949 and 1950, Maria Faicol suffered injuries to her eyes because of physical

maltreatment in the hands of the accused. On January 22, 1953, the accused sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing treatment of her eyesight. During her absence, the accused contracted a third marriage with a certain Jesusa C. Maglasang on October 3, 1953, in Sibonga, Cebu. (See Exhibits C, D, E and F)

The accused admitted having contracted marriage with Jesusa C. Maglasangin Sibonga, Cebu, on October 3, 1953, Although the accused made an attempt to deny his previous marriage with Maria Faicol, the Court, however, believes that the attempt is futile for the fact of the said second marriage was fully established not only by the certificate of the said marriage, but also by the testimony of Maria Faicol and of Eulogio Giroy, one of the sponsors of the wedding, and the identification of the accused made by Maria Faicol. (See Exhibits A and B; t.s.n. pp. 32-33, 40, 41, hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express provision in Act No. 3613 authorizing the filing of an action for judicial declaration of nullity of a marriage void ab initio, defendant could not legally contract marriage with Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by the death of the latter or by the judicial declaration of the nullity of such marriage, at the instance of the latter. Authorities given for this ruling are 5 Viada, 5th edition, 651; 35 American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H. 466, 69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil. 845; 50 O.G. [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is here no pretense that appellants second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, had been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until declared null and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case above-quoted But this weighty reasons notwithstanding, the very fundamental principle of strict construction of penal laws in favor of the accused, which principle we may not ignore, seems to justify our stand in the above-cited case of People vs. Mendoza. Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife, whose marriage with the appellant was not renewed after the death of the first wife and before the third marriage was entered into. Hence, the last marriage was a valid one and appellants prosecution for contracting this marriage can not prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed and the defendant-appellant acquitted, with costs de oficio, without prejudice to his prosecution for having contracted the second bigamous marriage. So ordered.

Paras, C.J. Bengzon, Bautista Angelo, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

Separate Opinions

REYES, A.J., dissenting:

I dissent.

Dissenting in the case of People vs. Mendoza, replied on by the majority, I there said:

Article 349 of the Revised Penal Code punishes with prision mayor any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved.

Though the logician may say that there were the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. As Viada says, La satidad e importancia del matrimonio no permite que los casados juzguen por si mosmos de su nulidad; esta ha de someterse [precisamente al juicio del Tribunalcompetente, y cuando este declare la nulidad del matrimonio, y solo entonces, se tendra por nulo; mientras no exista esta declaracion, la presuncion esta siempre a favor de la validez del matrimonio, yde consiguiente, el que contrae otro segundo antes de dicha declaracio de nulidad, no puede menos de incurrir la pena de este articulo. (3 Viada, Codigo Penal, p. 275.)

This is a sound opinion, says Mr. Justice Tuason in the case of People vs. Jose Cotas, (CA), 40 O.G. 3145, and is in line

xG.R. No. L-43905 May 30, 1983

SERAFIA G. TOLENTINO, petitioner, vs. HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL REGISTRAR OF PAOMBONG, BULACAN, respondents.

Amelita G. Tolentino for petitioner.

Hermin E. Arceo for Maria Clemente.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

The reversal of respondent Court's Order, dismissing petitioner's suit for her "declaration ... as the lawful surviving spouse of deceased Amado Tolentino and the correction of the death certificate of the same", is sought in this Petition for Review on Certiorari.

The records disclose that Amado Tolentino had contracted a second marriage with private respondent herein, Maria Clemente, at Paombong, Bulacan, on November 1, 1948 (Annex "C", Petition), while his marriage with petitioner, Serafia G. Tolentino, celebrated on July 31, 1943, was still subsisting (Annex "A", Petition).

Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First Instance of Bulacan, Branch II, which Court, upon Amado's plea of guilty, sentenced him to suffer the corresponding penalty. After Amado had served the prison sentence imposed on him, he continued to live with private respondent until his death on July 25, 1974. His death certificate carried the entry "Name of Surviving Spouse Maria Clemente."

In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct the name of the surviving spouse in the death certificate from "Maria Clemente" to "Serafia G. Tolentino", her

name. The lower Court dismissed the petition "for lack of the proper requisites under the law" and indicated the need for a more detailed proceeding,

Conformably thereto, petitioner filed the case below against private respondent and the Local Civil Registrar of Paombong, Bulacan, for her declaration as the lawful surviving spouse, and the correction of the death certificate of Amado. In an Order, dated October 21, 1976, respondent Court, upon private respondent's instance, dismissed the case, stating:

The Motion to Dismiss filed by the defendants in this case, thru counsel Atty. Hernan E. Arceo, for the reasons therein mentioned, is hereby GRANTED. Further: (1) the correction of the entry in the Office of the Local Civil Registrar is not the proper remedy because the issue involved is marital relationship; (2) the Court has not acquired proper jurisdiction because as prescribed under Art. 108, read together with Art. 412 of the Civil Code publication is needed in a case like this, and up to now, there has been no such publication; and (3) in a sense, the subject matter of this case has been aptly discussed in Special Proceeding No. 1587-M, which this Court has already dismissed, for lack of the proper requisites under the law.

In view of the above dismissal, all other motions in this case are hereby considered MOOT and ACADEMIC.

SO ORDERED. 1

Thus, petitioner's present recourse mainly challenging the grounds relied upon by respondent Court in ordering dismissal.

We rule for petitioner.

First, for the remedy. Although petitioner's ultimate objective is the correction of entry contemplated in Article 412 of the Civil Code and Rule 108 of the Rules of Court, she initially seeks a judicial declaration that she is the lawful surviving spouse of the deceased, Amado, in order to lay the basis for the correction of the entry in the death certificate of said deceased. The suit below is a proper remedy. It is of an adversary character as contrasted to a mere summary proceeding. A claim of right is asserted against one who has an interest in contesting it. Private respondent, as the individual most affected; is a party defendant, and has appeared to contest the petition and defend her interests. The Local Civil Registrar is also a party defendant. The publication required by the Court below pursuant to Rule 108 of the Rules of Court is not absolutely necessary for no other parties are involved. After all, publication is required to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established. 2 Besides, even assuming that this is a proceeding under Rule 108, it was the Court that was caned upon to order the publication, 3 but it did not. in the ultimate analysis,

Courts are not concerned so much with the form of actions as with their substance. 4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for Bigamy, that sentence furnishes the necessary proof of the marital status of petitioner and the deceased. There is no better proof of marriage than the admission by the accused of the existence of such marriage. 5 The second marriage that he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. 6 No judicial decree is necessary to establish the invalidity of a void marriage. 7 It can be safely concluded, then, without need of further proof nor remand to the Court below, that private respondent is not the surviving spouse of the deceased Amado, but petitioner. Rectification of the erroneous entry in the records of the Local Civil Registrar may, therefore, be validly made.

Having arrived at the foregoing conclusion, the other issues raised need no longer be discussed.

In fine, since there is no question regarding the invalidity of Amado's second marriage with private respondent and that the entry made in the corresponding local register is thereby rendered false, it may be corrected. 8 While document such as death and birth certificates, are public and entries therein are presumed to be correct, such presumption is merely disputable and will have to yield to more positive evidence establishing their inaccuracy. 9

WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set aside and petitioner, Serafia G. Tolentino, hereby declared the surviving spouse of the deceased Amado Tolentino. Let the corresponding correction be made in the latter's death certificate in the records of the Local Civil Registrar of Paombong, Bulacan.

No costs.

SOORDERED.

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner, vs. THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations Court of Caloocan City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued, the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pretrial order, Lilia asked the respondent court for an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration 1 of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED. Costs against petitioner.

G.R. No. L-43701

March 6, 1937

In re Instate of the deceased Marciana Escao. ANGELITA JONES., petitioner-appellant-appellee, vs. FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee.

Salvador E. Imperial for petitioner-appellant-appellee. Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

CONCEPCION, J.:

This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate proceedings of the deceased Marciana Escao, denying thereby: (1) the motion to appoint a new administrator and (2) to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933. granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and the final account; and (5) ordering the presentation of another project of partition and final account.

As Marciana Escao had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana Escao, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the proceedings by her guardian Paz Escao de Corominas. The project of partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the only heir of her mother, the deceased Marciana Escao; that there never was a valid marriage between her mother and Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there

was a valid marriage between Felix Hortiguela and Marciana Escao, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be made.

After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March 14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom.

The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged marriage to Marciana Escao was celebrated.

It is a fact that in December, 1914, Marciana Escao married Arthur W. Jones in the suburban catholic church of San Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escao, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escao were married before the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escao is null and void. This court does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escao's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escao, the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the efficacy and validity thereof.

On this point, the court a quo very correctly stated as follows:

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said:

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites."

In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that other proofs established by law may not be presented or admitted at trial, when through the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in the municipal register."

Furthermore, Marciana Escao believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead.

Inasmuch as Felix Hortiguela was lawfully married to Marciana Escao and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively).

Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the properties of the intestate estate.

The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings.

As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife. Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the payment of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit of the administration of the estate of the deceased Escao prior to the controversy provoked by said heiress. As to the remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and considering the importance of the inheritance in question and the time elapsed since the inception of the administration proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's services.

Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of Civil Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based.

For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of partition; denied the appointment

of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate estate are paraphernal properties of the deceased Marciana Escao reserving to the parties the right to discuss which are paraphernal and which are conjugal properties. So ordered.

Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES, vs. COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological incapacity." Since the Code's effectivity, our courts have been swamped with various petitions to declare marriages void based on this ground. Although this Court had interpreted the meaning of psychological incapacity in the recent case of Santos vs. Court of Appeals, still many judges and lawyers find difficulty in applying said novel provision in specific cases. In the present case and in the context of the herein assailed Decision of the Court of Appeals, the Solicitor General has labelled exaggerated to be sure but nonetheless expressive of his frustration Article 36 as the "most liberal divorce procedure in the world." Hence, this Court in addition to resolving the present case, finds the need to lay down specific guidelines in the interpretation and application of Article 36 of the Family Code.

Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993 Decision 1 of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet, which declared the marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground of "psychological incapacity" under Article 36 of the Family Code.

The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the petition alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin Church 4 in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo was relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family; that in October 1986 the couple had a very intense quarrel, as a result of which their relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child,

and had since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of complying with essential marital obligations and was a highly immature and habitually quarrel some individual who thought of himself as a king to be served; and that it would be to the couple's best interest to have their marriage declared null and void in order to free them from what appeared to be an incompatible marriage from the start.

In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live together as husband and wife, but contended that their misunderstandings and frequent quarrels were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking meals; and (3) Roridel's failure to run the household and handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the Church of St. Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina was born on July 29, 1986;

3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

6. That the common child of the parties is in the custody of the petitioner wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any evidence as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence, the present recourse.

The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the Family Code) and made an incorrect application thereof to the facts of the case," adding that the appealed Decision tended "to establish in effect the most liberal divorce procedure in the world which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial court's findings "that the marriage between the parties broke up because of their opposing and conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision Committee (hereinafter referred to as Committee) intended to liberalize the application of our civil laws on personal and family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as a broad range of mental and behavioral conduct on the part of one spouse indicative of how he or she regards the marital union, his or her personal relationship with the other spouse, as well as his or her conduct in the long haul for the attainment of the principal objectives of marriage. If said conduct, observed and considered as a whole, tends to cause the union to self-destruct because it defeats the very objectives of marriage, then there is enough reason to leave the spouses to their individual fates.

In the case at bar, We find that the trial judge committed no indiscretion in analyzing and deciding the instant case, as it did, hence, We find no cogent reason to disturb the findings and conclusions thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their psychological nature which renders them incapable of performing such marital responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . . and that (t)here is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."

On the other hand, in the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (nor physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor get along with each other. There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr. Sison testified: 8

COURT

Q It is therefore the recommendation of the psychiatrist based on your findings that it is better for the Court to annul (sic) the marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

Q Is it also the stand of the psychiatrist that the parties are psychologically unfit for each other but they are psychologically fit with other parties?

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological incapacity existing at the time of marriage celebration. While some effort was made to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and gentleness" on Reynaldo's part of being "conservative, homely and intelligent" on the part of Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If at all, it merely shows love's temporary blindness to the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this case visa-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and the difficulty experienced by many trial courts interpreting and applying it, the Court decided to invite two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, and Justice Ricardo C. Puno, 10 a member of the Family Code Revision Committee. The Court takes this occasion to thank these friends of the Court for their informative and interesting discussions during the oral argument on December 3, 1996, which they followed up with written memoranda.

From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, 11 recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state.

The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes the permanence, inviolability and solidarity

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical. although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, 13 nevertheless such root cause must be identified as a psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decision of such appellate tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church while remaining independent, separate and apart from each other shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such ruling becomes even more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

G.R. No. 143376

November 26, 2002

LENI O. CHOA, petitioner, vs. ALFONSO C. CHOA, respondent.

DECISION

PANGANIBAN, J.:

Though interlocutory in character, an order denying a demurrer to evidence may be the subject of a certiorari proceeding, provided the petitioner can show that it was issued with grave abuse of discretion; and that appeal in due course is not plain, adequate or speedy under the circumstances. Indeed, when the plaintiffs evidence is utterly and patently insufficient to prove the complaint, it would be capricious for a trial judge to deny the demurrer and to require the defendant to present evidence to controvert a nonexisting case. Verily, the denial constitutes an unwelcome imposition on the courts docket and an assault on the defendants resources and peace of mind. In short, such denial needlessly delays and, thus, effectively denies justice.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the March 16, 2000 Decision1 and the May 22, 2000 Resolution2 of the Court of Appeals (CA) in CA-GR SP No. 53100. The decretal portion of the Decision reads as follows:

"WHEREFORE, the instant Petition is hereby DISMISSED for lack of merit."3

The assailed Resolution denied petitioners Motion for Reconsideration.4

The Facts

Petitioner and respondent were married on March 15, 1981. Out of this union, two children were born, Cheryl Lynne and Albryan. On October 27, 1993, respondent filed before the Regional Trial Court (RTC) of Negros Occidental, Branch 51, a Complaint5 for the annulment of his marriage to petitioner. The Complaint was docketed as Civil Case No. 93-8098. Afterwards he filed an Amended Complaint6 dated November 8, 1993 for the declaration of nullity of his marriage to petitioner based on her alleged psychological incapacity.

The case went to trial with respondent presenting his evidence in chief. After his last witness testified, he submitted his Formal Offer of Exhibits7 dated February 20, 1998. Instead of offering any objection to it, petitioner filed a Motion to Dismiss (Demurrer to Evidence)8 dated May 11, 1998. The lower court then allowed a number of pleadings to be filed thereafter.

Finally, the RTC issued its December 2, 1998 Order9 denying petitioners Demurrer to Evidence. It held that "[respondent] established a quantum of evidence that the [petitioner] must controvert."10 After her Motion for Reconsideration11 was denied in the March 22, 1999 Order,12 petitioner elevated the case to the CA by way of a Petition for Certiorari,13 docketed as CA-GR No.

53100.

Ruling of the Court of Appeals

The CA held that the denial of the demurrer was merely interlocutory; hence, certiorari under Rule 65 of the Rules of Court was not available. The proper remedy was for the defense to present evidence; and if an unfavorable decision was handed down later, to take an appeal therefrom.14 In any event, no grave abuse of discretion was committed by respondent judge in issuing the assailed Orders.15

The CA also ruled that "the propriety of granting or denying a demurrer to evidence rests on the sound exercise of the [trial] courts discretion."16 Further, the "[p]etitioner failed to show that the issues in the court below [had] been resolved arbitrarily or without basis."17

Hence, this Petition.18

The Issues

In her Memorandum,19 petitioner submits the following issues for our consideration:

"1) Upon the denial of petitioners demurrer to evidence under Rule 33 of the 1997 Rules of Civil Procedure, is she under obligation, as a matter of inflexible rule, as what the Court of Appeals required of her, to present her evidence, and when an unfavorable [verdict] is handed down, appeal therefrom in the manner authorized by law, despite the palpably and patently weak and grossly insufficient or so inadequate evidence of the private respondent as plaintiff in the annulment of marriage case, grounded on psychological incapacity under Art. 36 of The Family Code? Or under such circumstances, can the extraordinary remedy of certiorari be directly and immediately resorted to by the petitioner; and

"2) In upholding the lower courts denial of petitioners demurrer to evidence, did the Court of Appeals wantonly violate, ignore or disregard in a whimsical manner the doctrinal pronouncements of this Court in Molina (G.R. No. 108763, February 13, 1997, 268 SCRA 198) and Santos (G.R. No. 112019, January 14, 1995, 58 SCRA 17)?"20

Simply stated, the issues are: (1) is certiorari available to correct an order denying a demurrer to evidence? and (2) in its denial, did the RTC commit grave abuse of discretion by violating or ignoring the applicable law and jurisprudence?

The Courts Ruling

The Petition is meritorious.

First Issue:

Resort to Certiorari

Petitioner argues that the RTC denied her Demurrer to Evidence despite the patent weakness and gross insufficiency of respondents evidence. Thus, she was entitled to the immediate recourse of the extraordinary remedy of certiorari. Echoing the CA, respondent counters that appeal in due course, not certiorari, is the proper remedy.

We clarify. In general, interlocutory orders are neither appealable nor subject to certiorari proceedings.

However, this rule is not absolute. In Tadeo v. People,21 this Court declared that appeal -- not certiorari -- in due time was indeed the proper remedy, provided there was no grave abuse of discretion or excess of jurisdiction or oppressive exercise of judicial authority.

In fact, Rules 41 and 65 of the Rules of Court expressly recognize this exception and allow certiorari when the lower court acts with grave abuse of discretion in the issuance of an interlocutory order. Rule 41 provides:

"No appeal may be taken from:

xxx

xxx

xxx

(c) An interlocutory order;

xxx

xxx

xxx

"In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." 22

In turn, Section 1 of Rule 65 reads as follows:

"SEC. 1. Petition for certiorari -- When any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any 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 annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require."23

Thus, a denial of a demurrer that is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction may be assailed through a petition for certiorari.24 In Cruz v. People, this exception was stressed by the Court in this wise:

"Admittedly, the general rule that the extraordinary writ of certiorari is not available to challenge interlocutory orders of the trial court may be subject to exceptions. When the assailed interlocutory orders are patently erroneous or issued with grave abuse of discretion, the remedy of certiorari lies."25

Second Issue:

Denial of Demurrer to Evidence

Having established that a writ of certiorari may be issued in exceptional circumstances, this Court is now tasked to determine whether the present case falls under the exception; that is, whether the RTC indeed committed a "patent error" or grave abuse of discretion in denying petitioners Demurrer to Evidence.

A demurrer to evidence is defined as "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue."26 The demurrer challenges the sufficiency of the plaintiffs evidence to sustain a verdict.27 In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or sufficient proof to sustain the indictment or to support a verdict of guilt.28

We have thoroughly reviewed the records of the present case, and we are convinced that the evidence against respondent (herein petitioner) is grossly insufficient to support any finding of psychological incapacity that would warrant a declaration of nullity of the parties marriage.

First. Respondent claims that the filing by petitioner of a series of charges against him are proof of the latters psychological incapacity to comply with the essential obligations of marriage. These charges included Complaints for perjury,29 false testimony,30 concubinage31 and deportation.32 According to him, the filing and the prosecution of these cases clearly showed that his wife (herein petitioner) wanted not only to put him behind bars, but also to banish him from the country. He contends that this "is very abnormal for a wife who, instead of protecting the name and integrity of her husband as the father of her children, had acted to the contrary."33

We do not agree. The documents presented by respondent during the trial do not in any way show the alleged psychological incapacity of his wife. It is the height of absurdity and inequity to condemn her as psychologically incapacitated to fulfill her marital obligations, simply because she filed cases against him. The evidence presented, even if taken as true, merely establishes the prosecution of the cases against him. To rule that the filings are sufficient to establish her psychological incapacity is not only totally erroneous, but also grave abuse of discretion bordering on absurdity.

Second. Neither is the testimony of respondent, taken by itself or in conjunction with his documentary offerings, sufficient to prove petitioners alleged psychological incapacity. He testified in these words:

"Q Will you please tell us or explain to the Court what do you mean by psychologically incapacitated to comply with the essential obligations of marriage. What do you mean by that?

A Because before our marriage she was already on the family way, so at that time she even want it aborted by taking pills. She was even immature, carefree, and she lacked the intention of procreative sexuality.34

xxx

xxx

xxx

ATTY. CHUA:

And you consider her that she was carefree, she is psychologically incapacitated? Will you please elaborate on this what you mean by carefree approximating psychologically incapacitated?

ATTY. MIRANO:

I think we better ask the witness what he means by carefree.

ATTY. CHUA:

Okay.

COURT:

Witness may answer.

WITNESS:

She does not help in the household chores, she does not take care of the child, she wants me to hire an attendant in order to take care of the child. Even when the children were sick she does not bother to let the children see a doctor.35

xxx

xxx

xxx

"STENOGRAPHER (reads back the question of Atty. Chua):

ATTY. CHUA:

Now. From the time of courtship up to the time of your marriage to the defendant, did you notice any characteristic or traits which you consider as psychological incapacity?

WITNESS:

Sometimes when I cannot visit at her house she gets mad at me, and she wont talk to me when I call her up by telephone. So, all she wanted for me to visit her everytime and even at the time when I am busy with some other things. So, I think that is all."36

Even if taken as true, the testimony of respondent basically complains about three aspects of petitioners personality; namely, her alleged (1) lack of attention to their children, (2) immaturity and (3) lack of an "intention of procreative sexuality." None of these three, singly or collectively, constitutes "psychological incapacity." Far from it.

In Santos v. CA,37 this Court clearly explained that "psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence and (c) incurability."38 Said the Court:

"It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase psychological incapacity under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma's Void and Voidable Marriages in the Family Code and their Parallels in Canon Law, quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward Hudson's Handbook II for Marriage Nullity Cases). Article 36 of the Family Code cannot be taken and construed independently of but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated."39

Furthermore, in Republic v. Molina,40 we ruled that the psychological incapacity must be more than just a "difficulty," a "refusal" or a "neglect" in the performance of some marital obligations. We stressed that a mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity.

In the case at bar, the evidence adduced by respondent merely shows that he and his wife could not get along with each other. There was absolutely no showing of the gravity or juridical antecedence or incurability of the problems besetting their marital union.

Sorely lacking in respondents evidence is proof that the psychological incapacity was grave enough to bring about the disability of a party to assume the essential obligations of marriage. In Molina, we affirmed that "mild characterological peculiarities, mood changes and occasional emotional outbursts cannot be accepted as root causes of psychological incapacity. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there should be a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage."41

Respondents pious peroration that petitioner "lacked the intention of procreative sexuality" is easily belied by the fact that two children were born during their union. Moreover, there is absolutely no showing that the alleged "defect" was already existing at the time of the celebration of the marriage.

Third. Most telling is the insufficiency, if not incompetency, of the supposed expert testimony presented by respondent. His witness, Dr. Antonio M. Gauzon, utterly failed to identify and prove the root cause of the alleged psychological incapacity. Specifically, his testimony did not show that the incapacity, if true, was medically or clinically permanent or incurable. Neither did he testify that it was grave enough to bring about the disability of the party to assume the essential obligations of marriage. The pertinent portions of his testimony are quoted thus:

"ATTY. CHUA:

And then finally and ultimately you reached the conclusion that both parties, meaning the husband and the wife in the present case have a personality which is normal. That is your conclusion?

WITNESS:

They are normal, but they cannot mix together.

Q. So as a general proposition, both of them are of normal personality, only that they are not compatible with each other?

A. Yes.

Q. And by normal personality, you mean that neither of them suffer from any personality disorder, bordering on abnormality?

A. Yes.

Q. But Doctor, is not a fact or a fact of life, that no couple could be or are perfectly match?

A. Precisely, if there is a problem, marital problem, there should be somebody who knows how to handle marriage, that should try to intervene.

Q. You mean expert advise or services should be needed by the couple?

A. Yes.

Q. Now, if the couple are mature enough and each of them practises what we call maximum tolerance and give and take, will that serve the purpose?

A. That would served the purpose of getting well.

Q. Yes?

A. Yes.

Q. Meaning to say that the incompatibility could be harmonized?

A. Yes, because they are supposedly normal, but both of them are personally disordered. It cannot be harmonized. So this case, if only they have tried professional help to take care of their marital problem, it could have been solved.

Q. Or the situation could have been remedied?

A. Yes. But I would like to say that it must be somebody who is an expert. Not just any from Tom, Dick and Harry could handle this. That means from the very beginning they have personalities which they were incompatible. So if anybody would handle that, they will not mix, they will be always quarreling with each other. They should not have got married.42

xxx

xxx

xxx

Q. Yes. So in this present case, your expert opinion was sought by the plaintiff, and you found out that both are normal?

A. With different personalities. So that they were incompatible.

Q. Normal, simply incompatible.

A. Yes, with personalities different from each other, which I mentioned there in my last page. That they are like oil and water, immiscible. Like oil and water, they will not mix.

Q. You also mentioned that the plaintiff. Meaning to say the husband told you about the frequent quarrels had with the wife. Did he ever tell you that was a serious or major quarrel?

A. Actually there was no major quarrel. It was all petty quarrels.43

xxx

xxx

xxx

Q. So the problem of this couple is fundamentally a conflicting personalities?

A. Yes.44

xxx

xxx

xxx

Q. Now, you mentioned that you maybe able to make them reconcile?

A. Yes.

Q. You mean that given the time and opportunity, things could be worked out?

A. Yes.

Q. You mean reconciliation at this stage with expert services, and the advise of those who possess the necessary [expertise] could be worked out?

A. Yes, as I said it can be done by therapy. Family therapy.45

xxx

xxx

xxx

Q. Doctor, you draw your conclusion that there is psychological inc[a]pacity existing in this case?

A. Yes.

Q. Because of the

A. The incompatibility.

Q. Incompatibility.

A. Yes.46

His testimony established merely that the spouses had an "incompatibility," a "defect" that could possibly be treated or alleviated through psychotherapy. We need not expound further on the patent insufficiency of the expert testimony to establish the psychological incapacity of petitioner.

Furthermore, the assessment of petitioner by Dr. Gauzon was based merely on descriptions communicated to him by respondent. The doctor never conducted any psychological examination

of her. Neither did he ever claim to have done so. In fact, his Professional Opinion47 began with the statement "[I]f what Alfonso Choa said about his wife Leni is true, x x x."48 The expert witness testified thus:

"ATTY. CHUA

Q Doctor, in this professional opinion of yours, you gathered most of your material data from the plaintiff who is the husband?

WITNESS

A Yes. By the way, I requested the husband Alfonso, if it was possible for me to interview Leni, and he said, he doesnt know.

ATTY. CHUA

Q He doesnt know. Now, Doctor if we were to request you to conduct the same personal interview and written psychological examination on the part of the wife, [w]ould you be willing to do that?

WITNESS

A Sure for a fee. I maybe able to make them reconcile."49

Obviously, Dr. Gauzon had no personal knowledge of the facts he testified to, as these had merely been relayed to him by respondent. The former was working on pure suppositions and secondhand information fed to him by one side. Consequently, his testimony can be dismissed as unscientific and unreliable.

Dr. Gauzon tried to save his credibility by asserting that he was able to assess petitioners character, not only through the descriptions given by respondent, but also through the formers at least fifteen hours50 of study of the voluminous transcript of records of this case. Even if it took the good doctor a whole day or a whole week to examine the records of this case, we still find his assessment of petitioners psychological state sorely insufficient and methodologically flawed.

As to respondents argument -- that because Dr. Gauzons testimony had never been objected to, the objection raised thereafter was deemed waived -- the Supreme Court has already ruled on the matter. It held that although the question of admissibility of evidence could not be raised for the first time on appeal, hearsay or unreliable evidence should be disregarded whether objected to or not, because it has no probative value.51

We are, of course, mindful of the ruling that a medical examination is not a conditio sine qua non to a finding of psychological incapacity, so long as the totality of evidence presented is enough to establish the incapacity adequately.52 Here, however, the totality of evidence presented by respondent was completely insufficient to sustain a finding of psychological incapacity -- more so without any medical, psychiatric or psychological examination.

The trial court should have carefully studied and assessed the evidence presented by respondent and taken into account the prevailing jurisprudence on the matter. It could then have easily concluded, as we conclude now, that it was useless to proceed further with the tedious process of hearing contravening proof. His evidence was obviously, grossly and clearly insufficient to support a declaration of nullity of marriage based on psychological incapacity. Withal, it was grave abuse of discretion for the RTC to deny the Demurrer and to violate or ignore this Courts rulings in point. Indeed, continuing the process of litigation would have been a total waste of time and money for the parties and an unwelcome imposition on the trial courts docket.

We have already ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence.53 Any decision, order or resolution of a lower court tantamount to overruling a judicial pronouncement of the highest Court is unmistakably a very grave abuse of discretion.54

There is no reason to believe that an appeal would prove to be a plain, speedy or adequate remedy in the case at bar. An appeal would not promptly relieve petitioner from the injurious effects of the patently mistaken Orders maintaining the baseless action of respondent. It would only compel her to go needlessly through a protracted trial, which would further clog the court dockets with another futile case.55

WHEREFORE, the Petition is hereby GRANTED and the assailed CA Decision REVERSED and SET ASIDE. Respondents Demurrer to Evidence is GRANTED, and the case for declaration of nullity of marriage based on the alleged psychological incapacity of petitioner is DISMISSED. No pronouncement as to costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Puno, (Chairman), J., abroad on official leave.

[G.R. No. 130087. September 24, 2003]

DIANA M. BARCELONA, petitioner, vs. COURT OF APPEALS and TADEO R. BENGZON, respondents.

DECISION

CARPIO, J.:

The Case

The Petition for Review before us assails the 30 May 1997 Decision[1] as well as the 7 August 1997 Resolution of the Court of Appeals in CA-G.R. SP No. 43393. The Court of Appeals affirmed the Order[2] dated 21 January 1997 of the Regional Trial Court of Quezon City, Branch 106, in Civil Case No. Q-95-24471. The Regional Trial Court refused to dismiss private respondents Petition for Annulment of Marriage for failure to state a cause of action and for violation of Supreme Court

Administrative Circular No. 04-94. The assailed Resolution denied petitioners motion for reconsideration.

The Facts

On 29 March 1995, private respondent Tadeo R. Bengzon (respondent Tadeo) filed a Petition for Annulment of Marriage against petitioner Diana M. Barcelona (petitioner Diana). The case was docketed as Civil Case No. Q-95-23445 (first petition) before the Regional Trial Court of Quezon City, Branch 87.[3] On 9 May 1995, respondent Tadeo filed a Motion to Withdraw Petition which the trial court granted in its Order dated 7 June 1995.

On 21 July 1995, respondent Tadeo filed anew a Petition for Annulment of Marriage against petitioner Diana. This time, the case was docketed as Civil Case No. Q-95-24471 (second petition) before the Regional Trial Court of Quezon City, Branch 106 (trial court).

Petitioner Diana filed a Motion to Dismiss the second petition on two grounds. First, the second petition fails to state a cause of action. Second, it violates Supreme Court Administrative Circular No. 04-94 (Circular No. 04-94) on forum shopping. Respondent Tadeo opposed the Motion to which petitioner Diana filed Additional Arguments in Support of the Motion.

The trial court, through Judge Julieto P. Tabiolo, issued on 18 September 1996 an Order (first order) deferring resolution of the Motion until the parties ventilate their arguments in a hearing. Petitioner Diana filed a motion for reconsideration. However, the trial court, through Pairing Judge Rosalina L. Luna Pison, issued on 21 January 1997 an Order (second order) denying the motion. In denying the motion for reconsideration, Judge Pison explained that when the ground for dismissal is the complaints failure to state a cause of action, the trial court determines such fact solely from the petition itself. Judge Pison held that contrary to petitioner Dianas claim, a perusal of the allegations in the petition shows that petitioner Diana has violated respondent Tadeos right, thus giving rise to a cause of action. Judge Pison also rejected petitioner Dianas claim that respondent Tadeo is guilty of forum shopping in filing the second petition. Judge Pison explained that when respondent Tadeo filed the second petition, the first petition (Civil Case No. Q-9523445) was no longer pending as it had been earlier dismissed without prejudice.

Petitioner Diana filed a Petition for Certiorari, Prohibition and Mandamus before the Court of Appeals assailing the trial courts first order deferring action on the Motion and the second order denying the motion for reconsideration on 14 February 1997. The Court of Appeals dismissed the petition and denied the motion for reconsideration.

Hence, this petition.

Ruling of the Court of Appeals

The Court of Appeals agreed with petitioner Diana that the trial court in its first order erred in deferring action on the Motion until after a hearing on whether the complaint states a cause of action. Nevertheless, the Court of Appeals pointed out that the trial courts second order corrected the situation since in denying the motion for reconsideration, the trial court in effect denied the Motion. The appellate court agreed with the trial court that the allegations in the second petition state a cause of action sufficient to sustain a valid judgment if proven to be true.

The Court of Appeals also held that there was no violation of Circular No. 04-94. To determine the existence of forum shopping, the elements of litis pendentia must exist or a final judgment in one case must amount to res judicata in the other. In this case, there is no litis pendentia because respondent Tadeo had caused the dismissal without prejudice of the first petition before filing the second petition. Neither is there res judicata because there is no final decision on the merits.

Issues

In her Memorandum, petitioner Diana raises the following issues:

I. WHETHER THE ALLEGATIONS OF THE SECOND PETITION FOR ANNULMENT OF MARRIAGE SUFFICIENTLY STATE A CAUSE OF ACTION;

II. WHETHER RESPONDENT TADEO VIOLATED SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 04-94 IN FAILING TO STATE THE FILING OF A PREVIOUS PETITION FOR ANNULMENT OF MARRIAGE, ITS TERMINATION AND STATUS.[4]

The Courts Ruling

The petition has no merit.

Sufficiency of Cause of Action

Petitioner Dianas contention that the second petition fails to state a cause of action is untenable. A cause of action is an act or omission of the defendant in violation of the legal right of the

plaintiff.[5] A complaint states a cause of action when it contains three essential elements: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises; (2) an obligation of the defendant to respect such right; and (3) the act or omission of the defendant violates the right of the plaintiff.[6]

We find the second petition sufficiently alleges a cause of action. The petition sought the declaration of nullity of the marriage based on Article 36 of the Family Code.[7] The petition alleged that respondent Tadeo and petitioner Diana were legally married at the Holy Cross Parish after a whirlwind courtship as shown by the marriage contract attached to the petition. The couple established their residence in Quezon City. The union begot five children, Ana Maria, born on 8 November 1964; Isabel, born on 28 October 1968; Ernesto Tadeo, born on 31 March 1970; Regina Rachelle born on 7 March 1974; and Cristina Maria born in February 1978. The petition further alleged that petitioner Diana was psychologically incapacitated at the time of the celebration of their marriage to comply with the essential obligations of marriage and such incapacity subsists up to the present time. The petition alleged the non-complied marital obligations in this manner:

xxx

5. During their marriage, they had frequent quarrels due to their varied upbringing. Respondent, coming from a rich family, was a disorganized housekeeper and was frequently out of the house. She would go to her sisters house or would play tennis the whole day.

6. When the family had crisis due to several miscarriages suffered by respondent and the sickness of a child, respondent withdrew to herself and eventually refused to speak to her husband.

7. On November 1977, the respondent, who was five months pregnant with Cristina Maria and on the pretext of re-evaluating her feelings with petitioner, requested the latter to temporarily leave their conjugal dwelling. She further insisted that she wanted to feel a little freedom from petitioners marital authority and influences. The petitioner argued that he could occupy another room in their conjugal dwelling to accommodate respondents desire, but no amount of plea and explanation could dissuade her from demanding that the petitioner leave their conjugal dwelling.

8. In his desire to keep peace in the family and to safeguard the respondents pregnancy, the petitioner was compelled to leave their conjugal dwelling and reside in a condominium located in Greenhills.

9. This separation resulted in complete estrangement between the petitioner and the respondent. The petitioner waived his right to the conjugal dwelling in respondents favor through an extrajudicial dissolution of their conjugal partnership of gains. The separation in fact between the

petitioner and the respondent still subsists to the present time.

10. The parties likewise agreed on the custody and support of the children. The extrajudicial dissolution of conjugal partnership of gains is hereto attached as Annex C and taken as an integral part hereof.

11. The respondent at the time of the celebration of their marriage was psychologically incapacitated to comply with the essential obligation of marriage and such incapacity subsisted up to and until the present time. Such incapacity was conclusively found in the psychological examination conducted on the relationship between the petitioner and the respondent.

12. Under Article 36 of the Family Code, the marriage between the petitioner and the respondent is void ab initio and needs to be annulled. This petition is in accordance with Article 39 thereof.

xxx.[8]

The second petition states the ultimate facts on which respondent bases his claim in accordance with Section 1, Rule 8 of the old Rules of Court.[9] Ultimate facts refer to the principal, determinative, constitutive facts upon the existence of which the cause of action rests. The term does not refer to details of probative matter or particulars of evidence which establish the material elements.[10]

Petitioner Diana relies mainly[11] on the rulings in Santos v. Court of Appeals[12] as well as in Republic v. Court of Appeals and Molina.[13] Santos gave life to the phrase psychological incapacity, a novel provision in the Family Code, by defining the term in this wise:

xxx psychological incapacity should refer to no less than mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. xxx.

Molina additionally provided procedural guidelines to assist the courts and the parties in cases for annulment of marriages grounded on psychological incapacity.[14]

Petitioner Diana argues that the second petition falls short of the guidelines set forth in Santos and Molina. Specifically, she contends that the second petition is defective because it fails to allege the root cause of the alleged psychological incapacity. The second petition also fails to state that the alleged psychological incapacity existed from the celebration of the marriage and that it is permanent or incurable. Further, the second petition is devoid of any reference of the grave nature of the illness to bring about the disability of the petitioner to assume the essential obligations of marriage. Lastly, the second petition did not even state the marital obligations which petitioner Diana allegedly failed to comply due to psychological incapacity.

Subsequent to Santos and Molina, the Court adopted the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (new Rules).[15] Specifically, Section 2, paragraph (d) of the new Rules provides:

SEC. 2. Petition for declaration of absolute nullity of void marriages

x x x.

(d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.

The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. (Emphasis supplied)

Procedural rules apply to actions pending and unresolved at the time of their passage.[16] The obvious effect of the new Rules providing that expert opinion need not be alleged in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity.

Science continues to explore, examine and explain how our brains work, respond to and control the human body. Scientists still do not understand everything there is to know about the root causes of psychological disorders. The root causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are evident. Hence, what the

new Rules require the petition to allege are the physical manifestations indicative of psychological incapacity. Respondent Tadeos second petition complies with this requirement.

The second petition states a cause of action since it states the legal right of respondent Tadeo, the correlative obligation of petitioner Diana, and the act or omission of petitioner Diana in violation of the legal right. In Dulay v. Court of Appeals,[17] the Court held:

In determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants (Rava Devt Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a claim has been defectively stated or is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). xxx. (Emphasis supplied)

A defendant moving to dismiss a complaint on the ground of lack of cause of action hypothetically admits all the factual averments in the complaint.[18] Given the hypothetically admitted facts in the second petition, the trial court could render judgment over the case.

Forum Shopping

Similarly untenable is petitioner Dianas contention that the second petitions certificate of nonforum shopping which does not mention the filing of the first petition and its dismissal without prejudice violates Circular No. 04-94.[19] Petitioner Diana refers to this portion of Circular No. 0494-

1. The plaintiff, petitioner, applicant or principal party seeking relief in the complaint, petition, application or other initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and simultaneously filed therewith, to the truth of the following facts and undertakings: (a) he has not theretofore commenced any other action or proceeding involving the same issues in the Supreme court, the Court of Appeals, or any other tribunal or agency; (b) to the best of his knowledge, no action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or proceeding which is either pending or may have been terminated, he must state the status thereof; and (d) if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency

wherein the original pleading and sworn certification contemplated herein have been filed.[20]

Petitioner Diana points out that respondent Tadeo did not disclose in his certificate of non-forum shopping that he had previously commenced a similar action based on the same grounds with the same prayer for relief. The certificate of non-forum shopping should have stated the fact of termination of the first petition or its status.

The Court has consistently held that a certificate of non-forum shopping not attached to the petition or one belatedly filed or one signed by counsel and not the party himself constitutes a violation of the requirement. Such violation can result in the dismissal of the complaint or petition. However, the Court has also previously held that the rule of substantial compliance applies to the contents of the certification.[21]

In Roxas v. Court of Appeals,[22] the Court squarely addressed the issue of whether the omission of a statement on the prior filing and dismissal of a case involving the same parties and issues merits dismissal of the petition. In Roxas, the Court ruled:

xxx an omission in the certificate of non-forum shopping about any event that would not constitute res judicata and litis pendentia as in the case at bar, is not fatal as to merit the dismissal and nullification of the entire proceedings considering that the evils sought to be prevented by the said certificate are not present. It is in this light that we ruled in Maricalum Mining Corp. v. National Labor Relations Commission that a liberal interpretation of Supreme Court Circular No. 04-94 on non-forum shopping would be more in keeping with the objectives of procedural rules which is to secure a just, speedy and inexpensive disposition of every action and proceeding.

The dismissal of the first petition precluded the eventuality of litis pendentia. The first petitions dismissal did not also amount to res judicata. Thus, there is no need to state in the certificate of non-forum shopping in the second petition (Civil Case No. Q-95-24471) about the prior filing and dismissal of the first petition (Civil Case No. Q-95-23445).

The first petition was dismissed without prejudice at the instance of respondent Tadeo to keep the peace between him and his grown up children. The dismissal happened before service of answer or any responsive pleading. Clearly, there is no litis pendentia since respondent Tadeo had already withdrawn and caused the dismissal of the first petition when he subsequently filed the second petition. Neither is there res judicata because the dismissal order was not a decision on the merits but a dismissal without prejudice.

Circular No. 04-94,[23] now Section 5, Rule 7 of the 1997 Rules of Civil Procedure, must be interpreted and applied to achieve its purpose. The Supreme Court promulgated the Circular to promote and facilitate the orderly administration of justice. The Circular should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.[24]

A final word. We are ever mindful of the principle that marriage is an inviolable social institution and the foundation of the family that the state cherishes and protects.[25] In rendering this Decision, this Court is not prejudging the main issue of whether the marriage is void based on Article 36 of the Family Code. The trial court must resolve this issue after trial on the merits where each party can present evidence to prove their respective allegations and defenses. We are merely holding that, based on the allegations in the second petition, the petition sufficiently alleges a cause of action and does not violate the rule on forum shopping. Thus, the second petition is not subject to attack by a motion to dismiss on these grounds.

WHEREFORE, we DENY the petition. The assailed Decision dated 30 May 1997 as well as the Resolution dated 7 August 1997 of the Court of Appeals in CA-G.R. SP No. 43393 is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 149498

May 20, 2004

REPUBLIC OF THE PHILIPPINES, petitioner, vs. LOLITA QUINTERO-HAMANO, respondent.

DECISION

CORONA, J.:

Before us is a petition for review of the decision1 dated August 20, 2001 of the Court of Appeals2 affirming the decision3 dated August 28, 1997 of the Regional Trial Court of Rizal, Branch 72, declaring as null and void the marriage contracted between herein respondent Lolita M. QuinteroHamano and her husband Toshio Hamano.

On June 17, 1996, respondent Lolita Quintero-Hamano filed a complaint for declaration of nullity of her marriage to her husband Toshio Hamano, a Japanese national, on the ground of psychological incapacity.

Respondent alleged that in October 1986, she and Toshio started a common-law relationship in Japan. They later lived in the Philippines for a month. Thereafter, Toshio went back to Japan and stayed there for half of 1987. On November 16, 1987, she gave birth to their child.

On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the Municipal Trial Court of Bacoor, Cavite. Unknown to respondent, Toshio was psychologically incapacitated to assume his marital responsibilities, which incapacity became manifest only after the marriage. One month after their marriage, Toshio returned to Japan and promised to return by Christmas to celebrate the holidays with his family. After sending money to respondent for two months, Toshio stopped giving financial support. She wrote him several times but he never responded. Sometime in 1991, respondent learned from her friends that Toshio visited the Philippines but he did not bother to see her and their child.

The summons issued to Toshio remained unserved because he was no longer residing at his given address. Consequently, on July 8, 1996, respondent filed an ex parte motion for leave to effect service of summons by publication. The trial court granted the motion on July 12, 1996. In August 1996, the summons, accompanied by a copy of the petition, was published in a newspaper of general circulation giving Toshio 15 days to file his answer. Because Toshio failed to file a responsive pleading after the lapse of 60 days from publication, respondent filed a motion dated November 5, 1996 to refer the case to the prosecutor for investigation. The trial court granted the motion on November 7, 1996.

On November 20, 1996, prosecutor Rolando I. Gonzales filed a report finding that no collusion existed between the parties. He prayed that the Office of the Provincial Prosecutor be allowed to intervene to ensure that the evidence submitted was not fabricated. On February 13, 1997, the trial court granted respondents motion to present her evidence ex parte. She then testified on how Toshio abandoned his family. She thereafter offered documentary evidence to support her testimony.

On August 28, 1997, the trial court rendered a decision, the dispositive portion of which read:

WHEREFORE, premises considered, the marriage between petitioner Lolita M. Quintero-Hamano and Toshio Hamano, is hereby declared NULL and VOID.

The Civil Register of Bacoor, Cavite and the National Statistics Office are ordered to make proper entries into the records of the afore-named parties pursuant to this judgment of the Court.

SO ORDERED.4

In declaring the nullity of the marriage on the ground of Toshios psychological incapacity, the trial court held that:

It is clear from the records of the case that respondent spouses failed to fulfill his obligations as husband of the petitioner and father to his daughter. Respondent remained irresponsible and unconcerned over the needs and welfare of his family. Such indifference, to the mind of the Court, is a clear manifestation of insensitivity and lack of respect for his wife and child which characterizes a very immature person. Certainly, such behavior could be traced to respondents mental incapacity and disability of entering into marital life.5

The Office of the Solicitor General, representing herein petitioner Republic of the Philippines, appealed to the Court of Appeals but the same was denied in a decision dated August 28, 1997, the dispositive portion of which read:

WHEREFORE, in view of the foregoing, and pursuant to applicable law and jurisprudence on the matter and evidence on hand, judgment is hereby rendered denying the instant appeal. The decision of the court a quo is AFFIRMED. No costs.

SO ORDERED.6

The appellate court found that Toshio left respondent and their daughter a month after the celebration of the marriage, and returned to Japan with the promise to support his family and take steps to make them Japanese citizens. But except for two months, he never sent any support to nor communicated with them despite the letters respondent sent. He even visited the Philippines but he did not bother to see them. Respondent, on the other hand, exerted all efforts to contact Toshio, to no avail.

The appellate court thus concluded that respondent was psychologically incapacitated to perform his marital obligations to his family, and to "observe mutual love, respect and fidelity, and render mutual help and support" pursuant to Article 68 of the Family Code of the Philippines. The appellate court rhetorically asked:

But what is there to preserve when the other spouse is an unwilling party to the cohesion and creation of a family as a social inviolable institution? Why should petitioner be made to suffer in a marriage where the other spouse is not around and worse, left them without even helping them cope up with family life and assist in the upbringing of their daughter as required under Articles 68 to 71 of the Family Code?7

The appellate court emphasized that this case could not be equated with Republic vs. Court of Appeals and Molina8 and Santos vs. Court of Appeals.9 In those cases, the spouses were Filipinos while this case involved a "mixed marriage," the husband being a Japanese national.

Hence, this appeal by petitioner Republic based on this lone assignment of error:

The Court of Appeals erred in holding that respondent was able to prove the psychological incapacity of Toshio Hamano to perform his marital obligations, despite respondents failure to comply with the guidelines laid down in the Molina case.10

According to petitioner, mere abandonment by Toshio of his family and his insensitivity to them did not automatically constitute psychological incapacity. His behavior merely indicated simple inadequacy in the personality of a spouse falling short of reasonable expectations. Respondent failed to prove any severe and incurable personality disorder on the part of Toshio, in accordance with the guidelines set in Molina.

The Office of the Public Attorney, representing respondent, reiterated the ruling of the courts a quo and sought the denial of the instant petition.

We rule in favor of petitioner.

The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family.11 Thus, any doubt should be resolved in favor of the validity of the marriage.12

Respondent seeks to annul her marriage with Toshio on the ground of psychological incapacity. Article 36 of the Family Code of the Philippines provides that:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

In Molina, we came up with the following guidelines in the interpretation and application of Article 36 for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. x x x

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994), nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor-General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor-General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.13 (emphasis supplied)

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability."14 The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.15

We now proceed to determine whether respondent successfully proved Toshios psychological incapacity to fulfill his marital responsibilities.

Petitioner showed that Toshio failed to meet his duty to live with, care for and support his family. He abandoned them a month after his marriage to respondent. Respondent sent him several letters but he never replied. He made a trip to the Philippines but did not care at all to see his

family.

We find that the totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to assume his marital responsibilities. Toshios act of abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological illness. After respondent testified on how Toshio abandoned his family, no other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped respondents case had she presented evidence that medically or clinically identified his illness. This could have been done through an expert witness. This respondent did not do.

We must remember that abandonment is also a ground for legal separation.16 There was no showing that the case at bar was not just an instance of abandonment in the context of legal separation. We cannot presume psychological defect from the mere fact that Toshio abandoned his family immediately after the celebration of the marriage. As we ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness.17 There was no proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage.18

According to the appellate court, the requirements in Molina and Santos do not apply here because the present case involves a "mixed marriage," the husband being a Japanese national. We disagree. In proving psychological incapacity, we find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human behavior in general. Hence, the norms used for determining psychological incapacity should apply to any person regardless of nationality.

In Pesca vs. Pesca,19 this Court declared that marriage is an inviolable social institution that the State cherishes and protects. While we commiserate with respondent, terminating her marriage to her husband may not necessarily be the fitting denouement.

WHEREFORE, the petition for review is hereby GRANTED. The decision dated August 28, 1997 of the Court of Appeals is hereby REVERSED and SET ASIDE.

SO ORDERED.

.R. No. 145226

February 06, 2004

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment2 dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution3 of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration.

The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978).

After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.

In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts.

In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.

On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.

On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago4 at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.

On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place.

On October 19, 1993, appellant was charged with Bigamy in an Information5 filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.6

The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:

WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum.

SO ORDERED.7

In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals,8 the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,9 which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu,10 everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory.

On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.

SO ORDERED.11

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by Article 34912 of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case.

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 1513 of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 1714 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. People,15 allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith.

On September 25, 2000, the appellate court denied the motion for lack of merit.16 However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be

convicted beyond reasonable doubt of bigamy.

The present petition raises the following issues for our resolution:

A.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.

B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.

C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.17

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid.

The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy.

For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in MarbellaBobis v. Bobis,18 which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 4019 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.

Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,20 we laid down the elements of bigamy thus:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.

Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.

SO ORDERED.21

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that

the marriage is void ab initio, in accordance with Articles 322 and 423 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, "This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married."24 The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory.

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married "from the beginning." The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge.

The present case is analogous to, but must be distinguished from Mercado v. Tan.25 In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as "void."26

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.

The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic.

WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty.

G.R. No. 150758

February 18, 2004

VERONICO TENEBRO, petitioner vs. THE HONORABLE COURT OF APPEALS, respondent.

DECISION

YNARES-SANTIAGO, J.:

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individuals criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.1

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter,3 Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

Ancajas thereafter filed a complaint for bigamy against petitioner.4 The Information,5 which was docketed as Criminal Case No. 013095-L, reads:

That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the essential requisites for validity were it not for the subsisting first marriage.

CONTRARY TO LAW.

When arraigned, petitioner entered a plea of "not guilty".6

During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children. However, he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony took place to solemnize their union.7 He alleged that he signed a marriage contract merely to enable her to get the allotment from his office in connection with his work as a seaman.8 He further testified that he requested his brother to verify from the Civil Register in Manila whether there was any marriage at all between him and Villareyes, but there was no record of said marriage.9

On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioners motion for reconsideration was denied for lack of merit.

Hence, the instant petition for review on the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS APPEAL WHEN IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND INSUFFICIENCY OF EVIDENCE.

II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11

After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment.

Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.12

Petitioners assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of the second marriage on the ground of psychological incapacity, which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated.13 Hence, petitioner argues that all four of the elements of the crime of bigamy are absent, and prays for his acquittal.14

Petitioners defense must fail on both counts.

First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first marriage between petitioner and Villareyes. Documentary evidence presented was in the form of: (1) a copy of a marriage contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally married.16

To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics Office dated October 7, 1995;17 and (2) a certification issued by the City Civil Registry of Manila, dated February 3, 1997.18 Both these documents attest that the respective issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986.

To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself would already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes.

All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to public documents are applicable to all. Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows:

Sec. 7. Evidence admissible when original document is a public record. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be

proved by a certified copy issued by the public officer in custody thereof (Emphasis ours).

This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible as the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated between petitioner and Villareyes on November 10, 1986, and it should be accorded the full faith and credence given to public documents.

Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests as a positive fact that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the documents merely attest that the respective issuing offices have no record of such a marriage. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of the marriage between Tenebro and Villareyes.

The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage between Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to absence of any record of the marriage, especially considering that there is absolutely no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a marriage exists does not invalidate the marriage, provided all requisites for its validity are present.19 There is no evidence presented by the defense that would indicate that the marriage between Tenebro and Villareyes lacked any requisite for validity, apart from the self-serving testimony of the accused himself. Balanced against this testimony are Villareyes letter, Ancajas testimony that petitioner informed her of the existence of the valid first marriage, and petitioners own conduct, which would all tend to indicate that the first marriage had all the requisites for validity.

Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by requesting his brother to validate such purported non-existence, it is significant to note that the certifications issued by the National Statistics Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents, therefore, are dated after the accuseds marriage to his second wife, private respondent in this case.

As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second requisites for the crime of bigamy.

The second tier of petitioners defense hinges on the effects of the subsequent judicial declaration20 of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.21

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the States penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioners valid marriage to Villareyes, petitioners marriage to Ancajas would be null and void ab initio completely regardless of petitioners psychological capacity or incapacity.22 Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes "any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The States penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individuals deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioners marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses).24 Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 3725 and 3826 may contract marriage.27

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.28 There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the judgment of the Court of Appeals.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accuseds guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities. Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the States basic social institution, the States criminal laws on bigamy step in.

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate penalty of four (4) years

and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto.

SO ORDERED.

G.R. No. L-26462

June 9, 1969

TERESITA C. YAPTINCHAY, petitioner, vs. HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY, in her own behalf and in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y. Yaptinchay and JESUS MONZON, MARY YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY, ASUNCION YAPTINCHAY, JOSEFINA Y. YAPTINCHAY, ROSA Y. MONZON, ISABEL Y. VALERIANO, REMEDIOS Y. YAPTINCHAY, FELICIDAD Y. ARGUELLES, MARY DOE and JOHN DOE, respondents.

V. E. del Rosario and Associates for petitioner. Sycip, Salazar, Luna, Manalo and Feliciano for respondents.

SANCHEZ, J.:

The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory powers should stake down as having been issued in excess of jurisdiction or with grave abuse of discretion, the respondent judge's order of June 15, 1966 in Civil Case 8873 (Court of First Instance of Rizal) directing petitioner to deliver to Special Administratrix

Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay the North Forbes Park property hereinafter described, and to refrain from disturbing or interfering in any manner whatsoever with the latter's possession thereof, such order having been amended by said respondent judge's subsequent order of June, 28, 1966 in turn enjoining defendants in said case (private respondents herein) and/or their duly authorized agents or representatives from selling, disposing, or otherwise encumbering said property in any manner whatsoever pending the termination of said case. We granted the writ of preliminary mandatory injunction prayed for and directed respondents to return the possession of the North Forbes Park property to petitioner upon a P50,000-bond.

The controlling facts are the following:

On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch, her appointment first as Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who died in Hongkong on July 7, 1965. This is known in the record as Special Proceedings 1944-P. Petitioner there alleged that the deceased Isidro Y. Yaptinchay had lived with her continuously, openly and publicly as husband and wife for nineteen (19) years: from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel Avenue, Pasay City; that the deceased who died without a will left an estate consisting of personal and real properties situated in the Philippines, Hongkong and other places with an estimated value of about P500,000; that to petitioner's knowledge and information, the deceased left three daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion Yaptinchay, all of age; that on July 7, 8 and 11, 1965, certain parties carted away from the residences aforesaid personal properties belonging to the deceased together with others exclusively owned by petitioner. It was averred that in these circumstances the appointment of a special administrator to take custody and care of the interests of the deceased pending appointment of a regular administrator became an urgent necessity.

Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C. Yaptinchay special administratrix of the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond.

To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate wife, and Ernesto Y. Yaptinchay and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said Teresita C. Yaptinchay, not being an heir of the decedent, had no right to institute the proceeding for the settlement of the latter's estate, much less to procure appointment as administratrix thereof; and that having admittedly cohabited with the deceased for a number of years said petitioner was not qualified to serve as administratrix for want of integrity. At the same time, oppositors counter-petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the deceased, as special administratrix and of Josefina Y. Yaptinchay, the alleged surviving spouse, as regular administratrix.

To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965 appointing petitioner Teresita C. Yaptinchay special administratrix.

On July 30, 1965, after the parties were heard, the probate court granted counterpetitioners' prayer and named Virginia Y. Yaptinchay special administratrix upon a P50,000bond.1awphil.nt

On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the deceased Isidro Y. Yaptinchay. Included amongst these was "[a] bungalow residential house with swimming pool, situated at Park corner Talisay Road, North Forbes Park, Makati, Rizal" adverted to at the start of this opinion.

It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita C. Yaptinchay made her second move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig Branch) of the Court of First Instance of Rizal an action for replevin and for liquidation of the partnership supposedly formed during the period of her cohabitation with Isidro Y. Yaptinchay and for damages. This case was docketed as Civil Case 8873. 1 Pending hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed for, respondent judge Guillermo E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein (private respondents here) and their agents from disposing any of the properties listed in the complaint and from interfering with plaintiff's (herein petitioner's) rights to, and possession over, amongst others, "the house now standing at North Forbes Park, Makati, Rizal."

On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of replevin and preliminary injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of the estate of the deceased Isidro Y. Yaptinchay was already vested in the Court of First Instance of Rizal, Pasay City Branch in the special proceedings heretofore mentioned (Special Proceedings No. 1944-P); (2) that the present liquidation case was filed to oust said probate court of jurisdiction over the properties enumerated in this, the second case (Civil Case 8873); and (3) that plaintiff was not entitled to the remedy of injunction prayed for, her alleged right sought to be protected thereby being doubtful and still in dispute.

Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to direct plaintiff (petitioner here) and all others in her behalf to cease and desist from disturbing in any manner whatsoever defendant Virginia Y. Yaptinchay's possession amongst others of the North Forbes Park house and to order the removal from the premises of said North Forbes Park house of the guards, agents and employees installed therein by plaintiff; to enjoin plaintiff and her agents from entering the aforesaid house and any other real property registered in the name of Isidro Y. Yaptinchay and from interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and powers of administration over the assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at the time of his

death.

Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which reads: "From the pleadings as well as the evidence already submitted and representations made to the court during the arguments, it appears that one of the properties in dispute is the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death of the deceased Isidro Y. Yaptinchay was still under construction and it also appears that after his death said property was among the properties of the deceased placed under the administration of the special administratrix, the defendant Virginia Y. Yaptinchay. Information has been given that in the evening of August 14, 1965, the plaintiff was able to dispossess the special administratrix from the premises in question and that since then she had been in custody of said house.

While the Court is still considering the merits of the application and counter-application for provisional relief, the Court believes that for the protection of the properties and considering the Forbes Park property is really under the responsibility of defendant Virginia Y. Yaptinchay, by virtue of her being appointed Special Administratrix of the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the issuance of a writ of preliminary injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by this Court is lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner whatsoever the defendant Virginia Y. Yaptinchay in the possession of said property.

WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is requiring the plaintiff, her representatives and agents or other persons acting in her behalf to deliver the possession of the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal to the Special Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing interfering in any manner whatsoever defendant's possession thereof.

Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites:

Considering that the present case treats principally with the liquidation of an alleged partnership between the plaintiff and the deceased Isidro Yaptinchay and considering further that said house in North Forbes Park is included among the properties in dispute, the Court hereby clarifies its Order of June 15, 1966 by enjoining the defendants and/or their duly authorized agents or representatives from selling, disposing or otherwise encumbering said property in any manner whatsoever pending the termination of this case.

Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966, which recites that:

Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said properties which were formerly held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her appointment and under her authority, as Special Administratrix of the estate of the deceased Isidro Yaptinchay, the plaintiff's Motion for Reconsideration is hereby denied.2

The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court.

1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro Yaptinchay, grave abuse of discretion attended respondent judge's order issuing an injunctive writ transferring possession of said property to respondent Virginia Y. Yaptinchay.

A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of taking property out of possession and/or control of a party and placing it in that of another whose title thereto has not been clearly established. 3 With this as guidepost, petitioner would have been correct if she were lawfully in possession of the house in controversy when Civil Case 8873 (where the injunctive writ was issued) was commenced in the Pasig court, and if respondent special administratrix, to whom the possession thereof was transferred, were without right thereto. But the situation here is not as petitioner pictures it to be. It is beyond debate that with the institution on July 13, 1965 of Special Proceedings 1944-P, properties belonging not only to the deceased Isidro Y. Yaptinchay but also to the conjugal partnership of said deceased and his legitimate wife, Josefina Y. Yaptinchay, 4 were brought under the jurisdiction of the probate court, properly to be placed under administration. 5 One such property is the lot at North Forbes Park. 6

With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court, petitioner avers "that the construction of said North Forbes Park property was undertaken jointly by petitioner and the deceased, petitioner even contributing her own exclusive funds therefor." 7 This is a reproduction of an allegation in petitioner's June 27, 1966 alternative motion for reconsideration or for clarification/amendment of the herein controverted order of June 15, 1966 in Civil Case 8873. 8 And again, in the affidavit of Teresita C. Yaptinchay dated August 3, 1965, she spoke of the acquisition of properties, real and personal, in her own words, "through our joint efforts and capital, among which properties are those situated" in "North Forbes Park." 9 All of which contradict her averment in the amended complaint dated October 25, 1965 also verified in said Case 8873 to the effect that she "acquired through her own personal funds and efforts real properties such as ... the house now standing at North Forbes Park, Makati, Rizal." 10

But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house. They maintain that the construction of that house was undertaken

by the deceased Isidro Y. Yaptinchay without her (petitioner's) intervention and the deceased paid with his own personal funds all expenses incurred in connection with the construction thereof. 11

It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y. Yaptinchay the Forbes Park house "was among the properties of the deceased placed under the administration of" respondent Virginia Y. Yaptinchay, that respondent judge issued the injunction order of June 15, 1966 herein complained of. Worth repeating at this point is that respondent judge, in his order of August 8, 1966, declared that defendants (private respondents herein), "principally Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of the North Forbes Park house "by virtue of her appointment and under her authority, as Special Administratrix."

On this score, petitioner herein is not entitled to the injunction she prayed for below.

2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in the exercise of which appellate courts will not interfere except in a clear case of abuse. 12

A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the disputed order of June 15, 1966 with the vice of grave abuse of discretion. It is quite true that, in support of the allegation that the house in North Forbes Park was her exclusive property, petitioner presented proof in the form of loans that she had contracted during the period when said house was under construction. But evidence is wanting which would correlate such loans to the construction work. On the contrary, there is much to the documentary proof presented by petitioner which would tend to indicate that the loans she obtained from the Republic Bank were for purposes other than the construction of the North Forbes Park home. And this, we gather from pages 17 to 18 of petitioner's memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A thereof, which states in its paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account" and that the proceeds thereof "were also used by affiant both for her business and for the construction, completion and furnishing of the said house at North Forbes Park", and which cites her seven promissory notes in favor of Republic Bank, Appendices 1 to 7 of said affidavit. Not one of the promissory notes mentioned reveals use of the proceeds for the construction of the North Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000 which says that the purpose of the loan for "Fishpond development"; Appendix 3 for P100,000 for the same purpose; Appendix 5 for P50,000, "To augment working capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For Agricultural Development". In plain terms, the fact alone of petitioner's indebtedness to the Republic Bank does not establish that said house was built with her own funds.

It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive property may not be permitted to override the prima facie presumption that house, having been constructed on the lot of Isidro Y. Yaptinchay (or of the

conjugal partnership) at his instance, and during the existence of his marriage with respondent Josefina Y. Yaptinchay, is part of the estate that should be under the control of the special administratrix.

3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be decisive. Said Article 144 says that: "When man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership." .

But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by conditions, the existence of which must first be shown before rights provided thereunder may be deemed to accrue. 13 One such condition is that there must be a clear showing that the petitioner had, during cohabitation, really contributed to the acquisition of the property involved. Until such right to co-ownership is duly established, petitioner's interests in the property in controversy cannot be considered the "present right" or title that would make available the protection or aid afforded by a writ of injunction. 14 For, the existence of a clear positive right especially calling for judicial protection is wanting. Injunction indeed, is not to protect contingent or future rights; 15 nor is it a remedy to enforce an abstract right. 16

At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North Forbes Park property be in the hands of the bonded administratrix in the estate proceedings. For then, her acts would be subject to the control of the probate court.

Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the writ of preliminary mandatory injunction 17 issued by this Court is hereby dissolved and set aside.

Costs against petitioner. So ordered.

Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistran

A.M. No. 02-11-10-SC

March 4, 2003

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court's consideration and approval the Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the Court Resolved to APPROVE the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003

March 4, 2003

Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna Ynares-Santiago, on leave Corona, on official leave

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

Section 1. Scope - This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of te Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition for declaration of absolute nullity of void marriages.

(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n)

(b) Where to file. - The petition shal be filed in the Family Court.

(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute nullity of void marriage shall not prescribe.

(d) What to allege. - A petition under Article 36 of Family Code shall specially allege te complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.

The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

Section 3. Petition for annulment of voidable marriages. -

(a) Who may file. - The following persons may file a petition for annulment of voidable marriage based on any of the grounds under article 45 of the Family Code and within the period herein indicated:

(1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party , at any time before such party has reached the age of twenty-one;

(2) The sane spouse who had no knowledge of the other's insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during the a lucid interval or after regaining sanity, provided that the petitioner , after coming to reason, has not freely cohabited with the other as husband or wife;

(3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife;

(4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife;

(5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapability continues and appears to be incurable, within five years after the celebration of marriage; and

(6) Te injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage.

(b) Where to file. - The petition shall be filed in the Family Court.

Section 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing. Or

in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.

(2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiringurgent action.

(3) It must be verified and accompanied celebration of marriage. (b) Where to file.-The petition shall be filed in the Family Court.

Section 4. Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines at the election of the petitioner.

Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.

(2) it shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.

(3) it must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by me petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.

If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country.

(4) it shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition.

Section 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:

(1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient.

(2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication.

Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

Section 8. Answer. - (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact.

(2) If the respondent fails to file an answer, the court shall not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.

Section 9. Investigation report of public prosecutor. - (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Section 10. Social worker. - The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.

Section 11. Pre-trial. -

(1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties.

(2) Notice of pre-trial. - (a) The notice of pre-trial shall contain:

(1) the date of pre-trial conference; and

(2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pretrial.

(b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.

Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;

(b) A concise statement of their respective claims together with the applicable laws and authorities;

(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;

(e) The number and names of the witnesses and their respective affidavits; and

(f) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs.

Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pretrial and require the public prosecutor to investigate the non-appearance of the respondent and

submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there Is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.

Section 14. Pre-trial conference. -At the pre-trial conference, the court:

(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.

The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month.

(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition.

Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up In the conference, the action taken thereon, the amendments allowed on the pleadings, and except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following;

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits.

(d) The parlies shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order.

The order shall control the trial of the case, unless modified by the court to prevent manifest injustice.

(e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following:

(a) The civil status of persons;

(b) The validity of a marriage or of a legal separation;

(c) Any ground for legal separation;

(d) Future support;

(e) The jurisdiction of courts; and

(f) Future legitime.

Section 17. Trial. - (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters

involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.

(3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals.

(4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.

Section 18. Memoranda. - The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

Section 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal Is filed by any of the parties the public prosecutor, or the Solicitor General.

(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties.

If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule.

The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and In the Civil Registry where the Family Court'granting the petition for declaration of absolute nullity or annulment of marriage is located.

Section 20. Appeal. -

(1) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive iegltimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after;

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Section 23. Registration and publication of the decree; decree as best evidence. - (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

Section 24. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.

Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

The Lawphil Project - Arellano Law Foundation

G.R. No. L-23433

February 10, 1968

GLORIA G. JOCSON, plaintiff-appellee, vs. RICARDO R. ROBLES, defendant-appellant.

REYES J.B.L., J.:

On February 4, 1963, Gloria G. Jocson commenced in the Juvenile & Domestic Relations Court an action for the annulment of her marriage to Ricardo R. Robles (Civ. Case No. E-00013), on the ground that it was bigamous. It was alleged in the amended complaint that previous to his marriage to plaintiff on May 27, 1958, defendant Robles had contracted a first marriage with Josefina Fausto, who had instituted a criminal action for Bigamy against the same defendant in the Court of First Instance of Manila (Crim. Case No. 64124). Plaintiff also demanded from the defendant moral and exemplary damages, attorneys' fees, and costs, claiming that during their cohabitation, she was subjected to physical maltreatment by her husband, resulting in the premature birth of their first child, who died three days later.

In his answer, defendant also assailed the validity of the marriage. But he charged plaintiffs' parents with having compelled him by force, threat and intimidation, to contract that marriage with her, notwithstanding their knowledge that he is a married man; and that said threat and intimidation allegedly persisted until January, 1963 when he was finally able to get away and live apart from the plaintiff.

Thereafter, defendant filed a motion for summary judgment, on the ground that no genuine issue of fact is involved in the case. It was claimed that defendant's contention, that his consent to the marriage was secured by force and intimidation employed upon his person by the relatives of plaintiff, was allegedly supported by the joint affidavit of plaintiff's father and brother, dated October 28, 1963, attached to the motion (pp. 22-32, Record on Appeal). Plaintiff, on the other hand, submitted the case for judgment on the pleadings.

On December 23, 1963, defendant's motion for summary judgment was denied, the court ruling that before it can pass upon plaintiff's prayer for the declaration of nullity of her marriage to defendant, there is necessity for proof that when he contracted marriage with plaintiff, defendant Robles had a previous and subsisting valid marriage. The evidentiary requirement to establish these facts, according to the court, was not met in the motion for summary judgment. Defendant's plea to have his marriage declared as having been brought about by force and intimidation, was also denied, the court finding indications of collusion between the parties in their attempt to secure the nullification of said marriage. Reconsideration of this order, sought by defendant, was denied on January 18, 1964. And, when both parties failed to appear at the scheduled hearing on March 9, 1964, the court directed the dismissal of the action.

On April 17, 1964, defendant notified the court below of his intention to appeal to this Court from the abovementioned orders of December 23, 1963, January 18, 1964, and March 9, 1964. The appeal bond and amended record on appeal, dated April 15, 1964, were thereafter approved.

It is noted that, as specified in the notice of appeal, defendant is taking exception from the lower court's orders of December 23, 1963, January 18, 1964, and March 9, 1964; however, there is no indication or certification or proof that the filing of the appeal notice, bond and record on appeal on April 17, 1964 were made within the reglementary period, as required by the provisions of Section 6, Revised Rule 41 of the Rules of Court. Thereunder, the record on appeal must contain, not only the full names of all the parties to the proceeding, as well as the pleadings, petitions, motions and orders related to the order or judgment subject of the appeal and which are necessary for the proper understanding of the issue involved therein, but also "such data as will show that the appeal was perfected on time." This requirement, incorporated in the new Rules of Court to enable the appellate courts to determine without protracted inquiry whether an appeal was timely made or not, was held to be jurisdictional, failure to comply with which shall cause the dismissal of the appeal. 1 There is here no showing that the present appeal was perfected within the reglementary period, which datum should have appeared in the record on appeal.

On the merits, we are satisfied that the Court of Domestic Relations correctly denied the motion for summary judgment in view of the first paragraph of Articles 88 and 1011 of the Civil Code of the Philippines, that expressly prohibit the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The affidavits annexed to the petition for summary judgment practically amount to these methods not countenanced by the Civil Code.

FOR THE FOREGOING REASONS, this proceeding is hereby dismissed, conformable to Section (a) of Revised Rule 50 of the Rules of Court, and the judgment appealed from is affirmed. Costs against the appellant.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. 1wph1.t

Footnotes

G.R. No. L-23264 March 15, 1974

ROMULO TOLENTINO, petitioner, vs. HELEN VILLANUEVA and HONORABLE CORAZON JULIANO AGRAVA, Judge of the Juvenile and Domestic Relations Court, respondents.

Magno T. Bueser for petitioner.

MAKASIAR, J.:p

Petitioner prays for the nullification of the order dated July 29, 1963 of the respondent Judge of the Juvenile and Domestic Relations Court of Manila.

On April 26, 1962, petitioner Romulo Tolentino filed a suit for annulment of his marriage to private respondent Helen Villanueva, alleging that his consent was obtained through fraud because immediately after the marriage celebration, he discovered that private respondent was pregnant despite the fact that he had no sexual relations with her prior to the marriage ceremony; and that they did not live as husband and wife as immediately after the marriage celebration, Helen Villanueva left his house and her whereabouts remained unknown to him until January, 1962 when he discovered that she is residing in San Francisco, Cebu. Said marriage was solemnized by Quezon City Judge Mariano R. Virtucio on September 28, 1959. Said case was docketed as Civil Case No, 43347 of the Juvenile and Domestic Relations Court of Manila.

Despite the fact that she was served with summons and copy of the complaint, Helen failed to file a responsive pleading, for which reason petitioner filed on June 13, 1962 a motion to declare her in default and to set the date for the presentation of his evidence.

In an order dated June 28, 1962, respondent Judge declared private respondent in default, but, pursuant to the provision of Articles 88 and 101 of the Civil Code of the Philippines, referred the case to the City Fiscal of Manila for investigation to determine whether collusion exists between the parties, directing the City Fiscal to submit his report within sixty (60) days from receipt thereof, and, in the event of a negative finding, to represent the State at the trial of the case to prevent fabrication of evidence; and likewise directed herein petitioner to furnish the City Fiscal with copies of the complaint and such other documents necessary for the City Fiscal's information and guidance.

On July 3, 1962, thru counsel, petitioner submitted to the City Fiscal only a copy of his complaint.

Assistant City Fiscal Rafael A. Jose, assigned to the case, issued a subpoena to petitioner's counsel requiring him to bring petitioner with him as well as copies of other documents in connection with the annulment case on August 27, 1962 at 10:00 A.M.

Plaintiff's counsel, in a letter dated August 24, 1962, informed Assistant City Fiscal Jose that he could not comply with the subpoena for it will unnecessarily expose his evidence.

In a motion dated and filed on October 29, 1962, petitioner, thru counsel, prayed the respondent Judge to set the date for the reception of his evidence on the ground that the City Fiscal had not submitted a report of his findings despite the lapse of sixty (60) days from July 10, 1962 when he

submitted to the City Fiscal a copy of the complaint.

On November 6, 1962, respondent Judge denied the aforesaid motion of petitioner unless he submits himself for interrogation by the City Fiscal to enable the latter to report whether or not there is collusion between the parties.

In an order dated July 29, 1963, respondent Judge dismissed the complaint in view of the fact that petitioner is not willing to submit himself for interrogation by the City Fiscal pursuant to the provisions of the second paragraph of Article 101 of the New Civil Code.

His motions for the reconsideration of the aforesaid order having been denied on July 29, 1963 and on April 11, 1964, petitioner now files his petition to annul said order of July 29, 1963 and to compel the respondent Judge to receive his evidence.

Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a decision in suits for annulment of marriage and legal separation based on a stipulation of facts or by confession of judgment and direct that in case of non-appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between the parties exists, and if none, said prosecuting attorney shall intervene for the State to prevent fabrication of evidence for the plaintiff. Thus, Articles 88 and 101 state:

ART. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the provisions of article 101, paragraph 2, shall be observed.

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.

Even the 1940 Rules of Court, which preceded the 1950 Civil Code of the Philippines, direct that actions for the annulment of marriage or divorce shall not be decided unless the material facts

alleged in the complaint are proved (Sec. 10, Rule 35, 1940 Rules of Court). The same rule is reiterated in Section 1 of Rule 19 of the 1964 Revised Rules, with "legal separation" being substituted for "divorce", obviously because the present Civil Code does not authorize absolute divorce.

The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds (De Ocampo vs. Florenciano, 107 Phil. 35, 38-40; Brown vs. Yambao, 102 Phil. 168, 172; Bigornia de Cardenas vs. Cardenas, et al., 98 Phil. 73, 78-79; Roque vs. Encarnacion, et al., 95 Phil. 643, 646).

Hence, the inevitable conclusion is that the petition is without merit.

WHEREFORE, THE ORDER DATED JULY 29, 1963 IS HEREBY AFFIRMED AND THE PETITION IS HEREBY DISMISSED. WITH COSTS AGAINST PETITIONER.

G.R. No. L-15853

July 27, 1960

FERNANDO AQUINO, petitioner, vs. CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant by another man, and sometime in April, 1955, or about four months after their marriage, gave birth to a child. In her answer, defendant claimed that the child was conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff however, testified and the only documentary evidence presented was the marriage contract between the parties. Defendant neither appeared nor presented any evidence despite the reservation made by her counsel that he would present evidence on a later date.

On June 16, 1956, the trial court noting that no birth certificate was presented to show that the child was born within 180 days after the marriage between the parties, and holding that concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would annul a marriage dismissed the complaint. Through a verified "petition to reopen for reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of the child born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and produce before the trial court thru excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying the motion for reception of additional evidence. On the theory, however, that it was not impossible for plaintiff and defendant to have had sexual intercourse during their engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such reconsideration be denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as annexes thereof the following documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with whom defendant was living at the time plaintiff met, courted and married her, and with whom defendant has begotten two more children, aside from her first born, in common-law relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from plaintiff before and up to the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant lived together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954, the November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months old at the time the picture was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case to this Court thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an

advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the motion praying for new trial simply because defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has been ordered of represent the Government precisely to prevent such collusion. As to the veracity of the contents of the motion and its annexes, the same can best be determined only after hearing evidence. In the circumstance, we think that justice would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without costs.

G.R. No. L-27930 November 26, 1970

AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee.

Isabelo V. Castro for plaintiff-appellant.

Arturo A. Romero for defendant-appellee.

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

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of the counterclaim was being negotiated "to settle the judgment," Fernando had divulged to Aurora that several months prior to their marriage he had pre-marital relationship with a close relative of his; and that "the nondivulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had pre-marital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her. He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal "with respect to the alleged moral damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her with love and affection not because he really felt so but because she merely happened to be the first girl available to marry so he could evade marrying the close relative of his whose immediate members of her family were threatening him to force him to marry her (the close relative);

(2) that since he contracted the marriage for the reason intimated by him, and not because he loved her, he secretly intended from the very beginning not to perform the marital duties and obligations appurtenant thereto, and furthermore, he covertly made up his mind not to live with her;

(3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him, when in order to placate and appease the immediate members of the family of the first girl (referent being the close relative) and to convince them of his intention not to live with plaintiff, carried on a courtship with a third girl with whom, after gaining the latter's love cohabited and had several children during the whole range of nine years that Civil Case No. 21589, had been litigated between them (parties); (Record on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding:

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.

the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides:

ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

xxx xxx xxx

(4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows:

ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article:

(1) Misrepresentation as to the identity of one of the contracting parties;

(2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more;

(3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband.

No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit

as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise, alleged in her reply that defendant Fernando paid court to her without any intention of complying with his marital duties and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of intention to perform duties of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within four years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already barred.

FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

G.R. No. L-27930 November 26, 1970

AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee.

Isabelo V. Castro for plaintiff-appellant.

Arturo A. Romero for defendant-appellee.

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

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of the counterclaim was being negotiated "to settle the judgment," Fernando had divulged to Aurora that several months prior to their

marriage he had pre-marital relationship with a close relative of his; and that "the nondivulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had pre-marital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her. He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal "with respect to the alleged moral damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her with love and affection not because he really felt so but because she merely happened to be the first girl available to marry so he could evade marrying the close relative of his whose immediate members of her family were threatening him to force him to marry her (the close relative);

(2) that since he contracted the marriage for the reason intimated by him, and not because he loved her, he secretly intended from the very beginning not to perform the marital duties and obligations appurtenant thereto, and furthermore, he covertly made up his mind not to live with her;

(3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him, when in order to placate and appease the immediate members of the family of the first girl (referent being the close relative) and to convince them of his intention not to live with plaintiff, carried on a courtship with a third girl with whom, after gaining the latter's love cohabited and had several children during the whole range of nine years that Civil Case No. 21589, had been litigated between them (parties); (Record on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the

authority of Brown vs. Yambao, 102 Phil. 168, holding:

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.

the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides:

ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

xxx xxx xxx

(4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows:

ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article:

(1) Misrepresentation as to the identity of one of the contracting parties;

(2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more;

(3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband.

No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise, alleged in her reply that defendant Fernando paid court to her without any intention of complying with his marital duties and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of intention to perform duties of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within four years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already barred.

FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs. cralaw_scdecisions_separator.NHAD

FIRST DIVISION

[G.R. No. L-8492. February 29, 1956.]

In the Matter of the Declaration of the Civil Status of: LOURDES G. LUKBAN, Petitioner-Appellant, vs. REPUBLIC OF THE PHILIPPINES, Oppositor-Appellee.

DECISION

BAUTISTA ANGELO, J.:

This is a petition filed in the Court of First Instance of Rizal for a declaration that Petitioner is a widow of her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage.

The Solicitor General opposed the petition on the ground that the same is not authorized by law. After Petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Hence this appeal.

Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel and since then he has not been heard from despite diligent search made by her. She also inquired about him from his parents and friends but no one was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known address being Calle Merced, Paco, Manila. She believes that he is already dead because he had been absent for more than twenty years, and because she intends to marry again, she desires that her civil status be defined in order that she may be relieved of any liability under the law.

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein it was held that a petition for judicial declaration that Petitioners husband is presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration cannot be made in a special proceeding similar to the present, much less can the court determine the status of Petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this nature is well expressed in the case above-cited. Thus, we there said that A

judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass cralaw. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final.

Appellant claims that the remedy she is seeking for can be granted in the present proceedings because in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact; chan roblesvirtualawlibrarybut, as already said, that remedy can be invoked if the purpose is to seek the declaration of death of the husband, and not, as in the present case, to establish a presumption of death. If it can be satisfactorily proven that the husband is dead, the court would not certainly deny a declaration to that effect as has been intimated in the case of Nicolas Szartraw, supra.

Appellant also claims that the present petition can be entertained because article 349 of the Revised Penal Code, in defining bigamy, provides that a person commits that crime if he contracts a second marriage before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings and, it is claimed, the present petition comes within the purview of this legal provision. The argument is untenable for the words proper proceedings used in said article can only refer to those authorized by law such as those which refer to the administration or settlement of the estate of a deceased person (Articles 390 and 391, new Civil Code). That such is the correct interpretation of the provision in question finds support in the case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following comment:chanroblesvirtuallawlibrary

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that each former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68).

The decision appealed from is affirmed, without pronouncement as to costs.

G.R. No. L-14058

March 24, 1960

In the matter of the petition for the declaration of William Gue, presumptively dead. ANGELINA L. GUE, petitioner-appellant, vs. THE REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

Virgilio V. David for appellant. Office of the Solicitor General Edilberto Barot and Solicitor E. M. Salva for appellee.

MONTEMAYOR, J.:

This is an appeal from the order of the Court of First Instance of Manila, presided by Judge Bonifacio Ysip, dismissing the petition of Angelina Gue. Involving as it does only question of law, the appeal was taken directly to us.

On November 20, 1957, Angelina L. Gue filed a petition in the Court of First Instance of Manila, Civil Case No. 34303, alleging that she was married to William Gue; that they had a child named Anthony L. Gue; that January 5, 1946, her husband left Manila where they were residing and went to Shanghai, China, but since then, he had not been heard of, neither had he written to her, nor in anyway communicated with her as to his whereabouts; that despite her efforts and diligence, she failed to locate him; and that they had not acquired any property during the marriage. She asked the court for a declaration of the presumption of death of William Gue, pursuant to the provisions of Article 390 of the Civil Code of the Philippines. After due publication and hearing, the trial court issued the order of dismissal, which we reproduce below:

This is a petition filed by Angelina L. Gue to declare her husband. William Gue, presumptively dead. During the hearing of this petition, it was established by the testimony of the petitioner that she and her husband were married on October 11, 1944 in the City of Manila before the parish priest of Tondo, Manila, as shows in Exhibit B, the marriage contract. Her husband, who is a Chinese citizen, left the Philippines for Shanghai on January, 1946. The petitioner joined him in Shanghai in August of the same year. In January, 1949, the petitioner came back to the Philippines alone with her children, on which occasion her husband promised to follow her. However, up to the present time, said William Gue has not returned to the Philippines. From January, 1949, the petitioner had sent letters to her husband in Shanghai, but she never received any reply thereto. She made inquiries from the Bureau of Immigration in 1955 and 1958 as to whether her husband had already returned to the Philippines and she received Exhibit D and Exhibit E from said Office, which gave no information as to the whereabouts of her husband. It was also established by petitioner's testimony that no properties have been acquired by said spouses during their union, and during which they begot two children, named Eugeni and Anthony, surnamed Gue.

With this evidence on record and considering the allegations in the petition, it is clear that no right had been established by the petitioner upon which a judicial decree may be predicated, and this action is not for the settlement of the estate of the absentee, as it is clear that he did not leave any.

In the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81 Phil., 461, a case similar to the present, the Supreme Court held:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he possessed property brought to the marriage and because he had acquired no property during his married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume that a person is dead after the fact that such person had been unheard from in seven years had been established. This presumption may arise and be invoked and made in a case, whether in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a special proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner for the final determination of his right or status or for the ascertainment of a particular fact (Hagans vs. Wislizenus, 42 Phil., 880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years. If there is any pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation, because such a presumption is established by law. A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. The latter must decide finally the controversy the right or status of a party or established finally a particular fact, out of which certain rights and obligations arise or may arise; and once such controversy is decided by a final judgment or such right or status is

determined, then the judgment on the subject of the controversy, or the decree upon the right or status of a party or upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof cannot reach the state of finality or become final. Proof of actual death of the person presumed dead because he had been unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. If a judicial decree declaring a person presumptively dead, because he had not been heard from in seven years, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such a presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court should not waste its valuable time and be made to perform a superfluous and meaningless act.

"Little effort is necessary to perceive that a declaration such as the one prayed for by the petitioner, if granted, may make or lead her to believe that the marital bonds which binds her to her husband are torn asunder, and that for that reason she is or may feel free to enter into a new marriage contract. The framers of the rules of court, by the presumption provided for in the rule of evidence in question, did not intend and mean that a judicial declaration based solely upon that presumption may be made. A petition for a declaration such as the one filed in this case may be made in collusion with the other spouse. If that were the case, then a decree of divorce that cannot be obtained or granted under the provisions of the Divorce Law (Act No. 2710) could easily be secured by means of a judicial decree declaring a person unheard from in seven years to be presumptively dead. This is another strong reason why a petition such as the one presented in this case should not be countenanced and allowed. What cannot be obtained directly under the provisions of the Divorce Law could indirectly be secured under the provisions of Rule 123, section 69 (x). Obviously, the latter must not be made to prevail over the former."

In view of the foregoing and the doctrine of the Supreme Court laid down in the case above-cited, the Court hereby orders that this case be, as it is hereby dismissed, without pronouncement as the costs.

In her appeal, Angelina invoked the provisions of the Article 390 of the New Civil Code, which for purpose of reference, we reproduce below.

ART. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening this succession till after an absence of ten years. If he disappeared after the of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

She contends that under Article 191 of the Old Civil Code, which reads:

After thirty years have elapsed since disappearance of the absentee, or since he was last heard from, or ninety years from his birth, the judgment upon the petition of any party lawfully interested, shall make an order declaring that such absentee is presumed to be dead.

a person could be declared presumptively dead, but that said legal provision was repealed by the Code of Civil Procedure and continued to be repealed by the Rules of Court. Consequently, only a mere disputable presumption of death was available to any party, and that the case of Nicolai Szatraw, cited by the trial court, was decided on the law then existing, namely, the Code of Civil Procedure, and later the new Rules of Court. However, according to appellant, with the promulgation of the New Civil Code in 1950, particularly, Article 390 thereof, the Courts are now authorized to declare persons presumptively dead.

In answer to her contention, the Solicitor General, as appellee herein, correctly cites our decision in the recent case of Lourdes G. Lukban vs. Republic of the Philippines, 98 Phil., 574; 52 Off. Gaz., No. 3, 1441, decided long after the New Civil Code went into effect, wherein we reiterated the doctrine laid own in Nicolai Szatraw, supra. We quote the pertinent portions of our decision in that case:

This is a petition filed in the Court of First Instance of Rizal for a declaration that petitioner is a widow of her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage.

The Solicitor General opposed the petition on the ground that the same is not authorized by law. After petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Hence this appeal.

Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel and since then he has not been heard from despite diligent search made by her. She also inquired about him from his parents and friends but no one was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known address being Calle Merced, Paco, Manila. She believes that he is already dead because he had been absent for more than twenty years, and because she intends to marry again, she desires that her civil status be defined in order that she may be relieved of any liability under the law.

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szatraw, 46 Off. Gaz. 1st Sup. 243, wherein it was held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by

law, and if such declaration cannot be made in a special proceedings similar to the present, much less can the court determine the status of petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead. (Nicolai Szatraw, 48 Off. Gaz., 1st Sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this nature is well expressed in the case above-cited. Thus, we there said that "A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass .. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final."

We deem it unnecessary to further discuss the merits of the case. The appealed order dismissing the petition is hereby affirmed, with costs.