BINDING EFFECT

G.R. No. L-37048 March 7, 1933

MANUELA BARRETTO GONZALEZ, plaintiff-appellee,

vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.

Quintin Paredes and Barrera and Reyes for appellant.

DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.

HULL, J.:

Plaintiff and defendant are citizens of the Philippine Islands and at present residents of the City of
Manila. They were married in the City of Manila on January 19, 1919, and lived together as man and
wife in the Philippine Islands until the spring of 1926. They voluntarily separated and since that time
have not lived together as man and wife. Of this union four children were born who are now 11, 10, 8
and 6 years of age. Negotiations between the parties, both being represented by attorneys,
continued for several months, whereupon it was mutually agreed to allow the plaintiff for her support
and that of her children, five hundred pesos (P500) monthly; this amount to be increased in case of
illness or necessity, and the title of certain properties to be put in her name. Shortly after this
agreement the husband left the Islands, betook himself to Reno, Nevada, and secured in that
jurisdiction an absolute divorce on the ground of desertion, which decree was dated November 28,
1927. Shortly thereafter the defendant moved to California and returned to these Islands in August
1928, where he has since remained. On the same date that he secured a divorce in Nevada he went
through the forms of marriage with another citizen of these Islands and now has three children as a
result of that marriage. Defendant, after his departure from these Islands, reduced the amount he
had agreed to pay monthly for the support of his wife and four minor children and has not made the
payments fixed in the Reno divorce as alimony.

Shortly after his return his wife brought action in the Court of First Instance of Manila requesting that
the courts of the Philippine Islands confirm and ratify the decree of divorce issued by the courts of
the State of Nevada; that section 9 of Act No. 2710, which reads as follows:

The decree of divorce shall dissolve the community of property as soon as such decree
becomes final, but shall not dissolve the bonds of matrimony until one year thereafter.

The bonds of matrimony shall not be considered as dissolved with regard to the spouse who,
having legitimate children, has not delivered to each of them or to the guardian appointed by
the court, within said period of one year, the equivalent of what would have been due to them
as their legal portion if said spouse had died intestate immediately after the dissolution of the
community of property.

be enforced, and that she and the defendant deliver to the guardian ad litem the equivalent of what
would have been due to their children as their legal portion from the respective estates had their
parents did intestate on November 28, 1927. It is also prayed that the community existing between
plaintiff and defendant be declared dissolved and the defendant be ordered to render an accounting
and to deliver to the plaintiff her share of the community property, that the defendant be ordered to
pay the plaintiff alimony at the rate of five hundred pesos (P500) per month, that the defendant be
ordered to pay the plaintiff, as counsel fees, the sum of five thousand pesos (P5000), and that the
defendant be ordered to pay plaintiff the expenses incurred in educating the three minor sons.

A guardian ad litem was appointed for the minor children, and they appear as intervenors and join
their mother in these proceedings. The Court of First Instance, after hearing, found against the
defendant and granted judgment as prayed for by the plaintiff and intervenors, with the exception of
reducing attorneys fees to three thousand, and also granted costs of the action against the
defendant. From this judgment defendant appeals and makes the following assignment of errors:

I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine
Divorce Law, is unconstitutional, null and void.

II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies to
the Nevada decree of divorce issued in favor of appellant Augusto C. Gonzalez, said decree
being entitled to confirmation and recognition.

III. The lower court erred in not dismissing the complaint in intervention for lack of cause of
action against appellant and appellee.

IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors to be
null and void.

V. The lower court erred in ordering the appellant to pay the sum of P500 per month for the
support not only of his children but also of his ex-wife, appellee herein, Manuela Barretto.

VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is not
entitled to support from her ex-husband, herein appellant, over and beyond the alimony fixed
by the divorce decree in Exhibit A.

VII. The lower court erred in condemning defendant appellant to pay to plaintiff-appellee
P3,000 attorney's fees.

VIII. The lower court erred in denying appellant's motion for new trial.

While the parties in this action are in dispute over financial matters they are in unity in trying to
secure the courts of this jurisdiction to recognize and approve of the Reno divorce. On the record
here presented this can not be done. The public policy in this jurisdiction on the question of divorce
is clearly set forth in Act No. 2710, and the decisions of this court: Goitia vs. Campos Rueda (35
Phil., 252); Garcia Valdez vs. Soteraña Tuason (40 Phil., 943-952); Ramirez vs. Gmur (42 Phil.,
855); Chereau vs. Fuentebella (43 Phil., 216); Fernandez vs. De Castro (48 Phil., 123); Gorayeb vs.
Hashim (50 Phil., 22); Francisco vs. Tayao (50 Phil., 42); Alkuino Lim Pang vs. Uy Pian Ng Shun
and Lim Tingco (52 Phil., 571); and the late case of Cousins Hix vs. Fluemer, decided March 21,
1931, and reported in 55 Phil., 851.

The entire conduct of the parties from the time of their separation until the case was submitted to this
court, in which they all prayed that the Reno divorce be ratified and confirmed, clearly indicates a
purpose to circumvent the laws of the Philippine Islands regarding divorce and to secure for
themselves a change of status for reasons and under conditions not authorized by our law. At all
times the matrimonial domicile of this couple has been within the Philippine Islands and the
residence acquired in the State of Nevada by the husband of the purpose of securing a divorce was
not a bona fide residence and did not confer jurisdiction upon the Court of that State to dissolve the
bonds if matrimony in which he had entered in 1919. While the decisions of this court heretofore in
refusing to recognize the validity of foreign divorce has usually been expressed in the negative and
have been based upon lack of matrimonial domicile or fraud or collusion, we have not overlooked
the provisions of the Civil Code now in force in these Islands. Article 9 thereof reads as follows:

The laws relating to family rights and duties, or to the status, condition and legal capacity or
persons, are binding upon Spaniards even though they reside in a foreign country.

And article 11, the last part of which reads:

. . . the prohibitive laws concerning persons, their acts and their property, and those intended
to promote public order and good morals, shall nor be rendered without effect by any foreign
laws or judgments or by anything done or any agreements entered into a foreign country.

It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine
Islands, will be recognized in this jurisdiction, except it be for a cause, and under conditions for
which the courts of Philippine Islands would grant a divorce. The lower court in granting relief as
prayed for frankly stated that the securing of the divorce, the contracting of another marriage and the
bringing into the world of innocent children brings about such a condition that the court must grant
relief. The hardships of the existing divorce laws of the Philippine Islands are well known to the
members of the Legislature. It is of no moment in this litigation what he personal views of the writer
on the subject of divorce may be. It is the duty of the courts to enforce the laws of divorce as written
by the Legislature if they are constitutional. Courts have no right to say that such laws are too strict
or too liberal.

Litigants by mutual agreement can not compel the courts to approve of their own actions or permit
the personal relations of the citizens of these Islands to be affected by decrees of foreign courts in a
manner which our Government believes is contrary to public order and good morals. Holding the
above views it becomes unnecessary to discuss the serious constitutional question presented by
appellant in his first assignment of error.

The judgment of the Court of First Instance of the City of Manila must therefore be reversed and
defendant absolved from the demands made against him in this action. This, however, without
prejudice to any right of maintenance that plaintiff and the intervenors may have against defendant.
No special pronouncement as to costs. So ordered.

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

PASTOR B. TENCHAVEZ, plaintiff-appellant,

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

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

Jalandoni & Jarnir for defendants-appellees.

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

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

The facts, supported by the evidence of record, are the following:

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

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

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

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating
with Pastor (Exh. "1-Escaño"), but her letters became less frequent as the days passed. As of June,
1948 the newlyweds were already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She
did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-
appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City,
and that she intended to return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce against the herein
plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe,
on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of
divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation
of her marriage (Exh. "D"-2).

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

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

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

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

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

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

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

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

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escaño, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was
not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church
and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in
force at the time) expressly provided that —
 SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)

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

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

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

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

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

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

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

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:
 Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.

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

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

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

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

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

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

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

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

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

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

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been shown, good faith being always
presumed until the contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right
of a parent to interest himself in the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction between the liability of
parents and that of strangers is only in regard to what will justify interference. A parent
isliable for alienation of affections resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless
he acts maliciously, without justification and from unworthy motives. He is not liable where he
acts and advises his child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not terminating his right and liberty
to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even
 where his conduct and advice suggest or result in the separation of the spouses or the
obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or
where his advice or interference are indiscreet or unfortunate, although it has been held that
the parent is liable for consequences resulting from recklessness. He may in good faith take
his child into his home and afford him or her protection and support, so long as he has not
maliciously enticed his child away, or does not maliciously entice or cause him or her to stay
away, from his or her spouse. This rule has more frequently been applied in the case of
advice given to a married daughter, but it is equally applicable in the case of advice given to
a son.

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

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

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

Summing up, the Court rules:

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

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

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

(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;

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

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

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

Neither party to recover costs.

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of
the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and
August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent
is a citizen of the United States; that they were married in Hongkong in 1972; that, after the
marriage, they established their residence in the Philippines; that they begot two children born on
April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United
States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private respondent be declared with right
to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause
of action is barred by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground
that the property involved is located in the Philippines so that the Divorce Decree has no bearing in
the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in
a certiorari proceeding to exercise its supervisory authority and to correct the error committed which,
in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be
useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this
case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over
private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground
of incompatibility in the understanding that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of
KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear
on my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public police and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court
of competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;
and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to
be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate, Manila where their only
child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of
the child was granted to petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the dissolution of said marriage
was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los
Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a
resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the
Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and
William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by
the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James
Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch
XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar
petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the
respondent city fiscal to inform the Department of Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire
records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8,
1987. The same order also directed the arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such
refusal of the petitioner being considered by respondent judge as direct contempt, she and her
counsel were fined and the former was ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal
Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez
acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a
resolution directing the respondent city fiscal to move for the dismissal of the complaints against the
petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse. It has long since been established, with unwavering consistency, that compliance with this
rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the
jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who
can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of
the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended
party. The so-called exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate
the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to do so
at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in
fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as
of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his
power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued
by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is
still subsisting at the time of the institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity
to bring the action would be determined by his status beforeor subsequent to the commencement
thereof, where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by
the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the
right to institute proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such when
the prosecution was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must
be such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse,
and by this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our
civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was conjugal property and praying that
she be ordered to render an accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance,
thus:

There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.
When said respondent initiated the divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be one
of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth
be no spousal relationship to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the actuations of one would not affect or
cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it should be made to appear that she is entitled to
have her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that the marriage
is void ab initio is equivalent to stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg
to stand on. Moreover, what was consequently contemplated and within the purview of the decision
in said case is the situation where the criminal action for adultery was filed beforethe termination of
the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer
the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse
therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual
situation akin to the one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made
permanent.

SO ORDERED.

HUMAN RELATIONS

G.R. No. 88582 March 5, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HEINRICH S. RITTER, accused-appellant,

The Solicitor General for plaintiff-appellee.

Esteban B. Bautista for accused-appellant.

GUTIERREZ, JR., J.:

The appellant challenges his conviction of the crime involving a young girl of about 12 years old who
had been allegedly raped and who later died because of a foreign object left inside her vaginal
canal.

Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which
reads:

That on or about the tenth (10th day of October, 1986 in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design and with intent to kill one Rosario Baluyot, a woman under twelve (12) years of age,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of said Rosario
Baluyot and inserted a foreign object into the vaginal canal of said Rosario Baluyot which
caused her death shortly thereafter, to the damage and prejudice of her relatives. (66)
When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the
merits.

To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1)
Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr.
Reino Rosete, (6) Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva Palencia, (9) Conrado
Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, (14)
Patricia Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino
Z. Floresta, (22) Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.

On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1)
Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar Alcantara, (5) Dr.
Val Barcinal and (6) Dr. Pedro C. Solis.

The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt
are summarized in its decision, as follows:

The people's evidence show that on October 10, 1986 about midnight, accused Heinrich
Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his
hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2) children
were chosen from among a bunch of street children. Once inside the hotel room accused
told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and when
he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot
was inside the bathroom, accused Ritter took out some pictures depicting dressed up young
boys, and put them on top of the table. Other things which were taken out and placed on top
of a table were three (3) other objects which he described as like that of a vicks inhaler. One
of these objects the accused played with his hands and placed it on his palms. The color of
which is grayish blue which turned out later to be the foreign object which was inserted inside
the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal
inhalers against pollution purchased by the accused in Bangkok when he went there as a
tourist. While Rosario was in the bathroom, accused told Ramirez to lay down on bed, and
so did the accused. He then started masturbating the young boy and also guided the boy's
hand for him to be masturbated, so that they masturbated each other, while they were both
naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the
bathroom, she was told to remove her clothes by accused and to join him in bed. The
accused then placed himself between the two (2) children and accused started fingering
Rosario.

At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He
looked, and he saw accused placing his penis against the vagina of Rosario and that he was
trying to penetrate the vagina but it would not fit. After what he saw, Ramirez did not
anymore bother to look because he was sleepy and fell asleep.

The following morning, the accused, whom the juveniles described as an "American, paid
Ramirez alias"Egan" P200.00 and Rosario P300.00. He then left them in the hotel. After the
American left, they went downstairs, and Rosario told Egan that the American inserted
something in her vagina. But they could not do anything anymore, because the American
had already left, and neither did they report the matter to the police. Sometime the following
day, Jessie saw Rosario and he asked her whether the object was already removed from her
body and Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that
same date, he saw Rosario and she was complaining of pain in her vagina and when Egan
asked her, she said that the foreign object was not yet removed. Then there was another
occasion wherein Jessie was summoned and when he came he saw Rosario writhing in pain
and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter,
he did not see Rosario anymore because he already went home to his aunt's house who
resided at Barrio Barretto and resumed his studies in the primary grades.

On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21,
near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake
Shop near Lot 21, being ogled by people because Rosario's skirt was bloodied and she was
unconscious and foul smelling. Since nobody helped Rosario, he took pity on her condition
and brought her to the Olongapo City General Hospital in an unconscious condition, via
jeepney. He went to the Information desk and he was the one who gave the personal
circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower
Kalaklan, and Gaspar Alcantara signed as "guardian" of Rosario, while Rosario was already
in the emergency room. Although Gaspar Alcantara denied that he did not know the name of
Rosario Baluyot when he brought her to the hospital, this is belied by the testimony of the
Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara
who supplied the personal circumstances of Rosario. The Court gives more credence to the
testimony of Miss Limos as against Gaspar Alcantara who became a defense witness, for
the reason that through his own testimony, Gaspar Alcantara claimed that even prior to May
14, 1987, he had already known Rosario Baluyot for more than one (1) year, because he has
seen the said girl go to the house of his twin brother, Melchor Alcantara, who is his
immediate neighbor. Rosario used to visit a girl by the name of "Nora" who was then in the
custody of his brother. His brother Melchor was also living with their mother, brother and
sister-in-law and their two (2) children in his house. Rosario as per Gaspar's testimony even
stays for one week or a few days at his brother's house when she visits Nora. So the Court
can safely assume that of all the more than one (1) year that he had regularly seen Rosario
at his brother's house, he must have already did come to know the name of Rosario Baluyot
including her age. In his testimony in Court he stated that he even asked Rosario for movie
and softdrinks money which can safely be concluded that he knows her very well. It is
against normal behavior especially to a Filipino who have a characteristic of curiosity not to
have found out the real name of the girl he claims to know only as "Tomboy".

While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was
attending to her since she is a street child, having stowed away from the custody of her
grandmother. Three (3) good samaritans who belong to religious and civic organizations, in
the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of their missions in
the hospital chanced upon Rosario Baluyot who was all alone with no relatives attending to
her and after finding out that she was only 12 years old decided to help her. After a short
interview with Rosario, regarding her name and age only because she clamped up about her
residence and her relatives, they decided to help her by providing her the medicine she
needed during her confinement in readiness for an operation. It was Fe Israel who was able
to get the name and age of Rosario Baluyot from Rosario Baluyot herself when she saw her
for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor because
their program assisted only indigent patients from infants up to 13 years old.

Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement
and vomiting, which was first suspected as gastro-enteritis, but which came out later as
symptoms of peritonitis due to a massive infection in the abdominal cavity. Subsequently, on
May 17, 1987, after she was examined by the physicians at the hospital, it was found out that
there was a foreign object lodged in her vaginal canal and she had vaginal discharge tinged
with blood and foul smelling odor emanating from her body. One of the doctors who attended
to her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object by
means of a forceps, but several attempts proved futile because said object was deeply
embedded in the vaginal canal and was covered by tissues. Her abdomen was enlarged,
tender and distended, symptoms of peritonitis. The patient was feverish and incoherent when
she was scheduled for operation on May 19, 1987, after the first attempt for an operation on
May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the hospital director
was not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified
that Rosario had to be operated even in that condition in order to save her life. Her condition
was guarded. This was corroborated by Dr. Leo Cruz, the anesthesiologist during Rosario's
operation. It was in the evening of May 19 at about 7:00 p.m. when Dr. Rosete opened her
abdomen by making a 5 inch incision on her stomach. He found out that the fallopian tubes
were congested with pus and so with the peritonieum, and the pelvic cavity, and patches of
pus in the liver, although the gallbladder and kidney appeared to have septicemia, poisoning
of the blood. The peritonitis and septicemia were traced to have been caused through
infection by the foreign object which has been lodged in the intra-vaginal canal of Rosario.
The foreign object which was already agreed upon by both parties that it is a portion of a
sexual vibrator was extracted from the vagina of Rosario while under anesthesia. Said object
was coated with tissues, pus and blood. Dr. Rosete gave it to the assisting surgical nurse for
safekeeping and gave instructions to release it to the authorized person. This object was
shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the
patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the
ward for about 30 minutes and thereafter he left. The following day, Rosario got serious and
it was Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May 20,
1987.

Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was
indicated therein that the cause of death was cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in the intra uteral vaginal canal of Rosario
Baluyot.

The foreign object was washed by nurse Obedina, then placed it in a transparent small jar
and labelled "Rosario Baluyot". Jessica Herrera asked the nurse for the foreign object, and it
was given to her under proper receipt. Herrera then showed the same to the persons who
helped financially Rosario's case, and afterwards she gave it to Sister Eva Palencia. Sis.
Palencia was in custody of the said object until Mr. Salonga came and asked her for the
object.

After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask
him in locating the relatives of Rosario. They were able to trace Rosario's grandmother, Mrs.
Maria Burgos Turla, and informed her that her granddaughter was already dead and lying in
state at St. Martin Funeral Parlor. Mrs. Turla went there with her son, who shouldered all the
burial expenses for Rosario.

Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita
and asked her if she was interested in filing a case against the person who caused the death
of her granddaughter. Of course she agreed. Hence, she was brought to the Fiscal's (City)
Office to file the same.

After the case was filed against the herein accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that the accused was willing to settle the case,
but that accused Ritter had only P15,000.00. The old woman did not accept it because she
knows that the accused is liable to pay damages anyway. After that, she received a letter
from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she can no longer
bear the situation, sent her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged
and told her that she will be paid at the office of Atty. Legaspi. On a date not clear in the
records, she went with her nephew Conrado Marcelo, and Roberto Sundiam, an assistant
barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter
left. After he left, Atty. Legaspi told Rosario's grandmother that they are willing to settle for
P20,000.00, but that Ritter left only P15,000.00, so she received the money with the
understanding that there was a balance of P5,000.00 yet. She was made to sign a
statement, and she was asked to change the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's messenger went to the Fiscal's office to have it
subscribed, and was subscribed before an assistant city fiscal. But the balance of P5,000.00
was not paid, because later on Atty. Legaspi became the OIC of Olongapo City and he could
no longer attend to it. Atty. Legaspi, during one of the hearings before the Court even
apologized to her.

As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was directed by
Col. Daos, Station Commander of the Olongapo Police Department to make a follow up of
the case of Rosario Baluyot. On the other hand, since the suspect who inserted the foreign
object inside Rosario's vagina was said to be an American, the NISRA Subic Naval Base
also conducted its investigation headed by criminal investigator Agent Conrado Salonga.
Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street
child at Magsaysay Drive, they rounded up about 43 street children and from some of them
they learned that Rosario Baluyot was with Jessie Ramirez with an American at the MGM
Hotel when the foreign object was inserted in her vagina. After finding Jessie Ramirez, they
asked him about Rosario Baluyot. They found out that indeed he was with Rosario Baluyot
sometime before Christmas of 1986 with an American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his
statement. Then he was brought to Mr. Edward Lee Bungarner, a cartographer, and out of
the description supplied by Ramirez, a composite drawing was photocopied and copies
thereof were distributed to the local police and to the sentries at the gate of the U.S. Naval
Base. Some American servicemen who had resemblance to the composite drawing were
photographed and these were shown to Jessie Ramirez, but the result was negative. Aside
from the physical description by Ramirez about the appearance of the suspect, he also
described him as having the mannerisms of a homo-sexual.

After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and thinking
that the so-called American may be European or Australian national, the team composed of
Agent Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and P/Cpl. Andres Montaon, Jessie
Ramirez and Michael Johnson, another juvenile, proceeded to Manila. They first went to the
Manila NISRA Office, and thereafter checked in a hotel. That was on September 23, 1987.
On the first night, they went to Luneta Park where foreign homo-sexuals were said to be
frequenting, but the result was negative. Then on September 25, at about 11:00 p.m., while
they were standing at the corner of A. Mabini and M.H. del Pilar Street, a male caucasian
who looked like a homo-sexual stopped by admiringly infront of the two (2) juveniles,
Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga that this foreigner had a
similarity with the American suspect, so the two minors were instructed to follow the foreigner
and to strike a conversation. They did, and when they returned, Jessie Ramirez told them
that indeed the said foreigner was the one who brought him and Rosario Baluyot to the MGM
Hotel. Bobby Salonga told Ramirez that this foreigner had no beard while the one previously
described by Ramirez had a beard. Jessie Ramirez told them that maybe he have just
shaved it off. The said caucasian then entered a bar, and after several minutes he came out,
and Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that the said
 foreigner is the suspect, arrested Ritter and brought him to the Manila Western Police
District. It could be mentioned at this stage that in this operation they were accompanied by
two (2) policemen from the Western Police District. The foreigner was hand cuffed and was
told that he was a suspect for Rape with Homicide. After the arrest, they first went to the
pension house of the suspect in Ermita, Manila to get his shoulder bag which contained his
personal belongings, and from there they brought him to the Western Police Department. At
the said police headquarters, they were allowed a permissive search by the foreigner of his
clutch bag and his small shoulder bag and confiscated his passport, I.D., 3 inhalers, money
in the form of dollars and travellers checks amounting about $1,500.00 and about P100.00,
all duly receipted for. From the passport they learned that the suspect's name was Heinrich
Stefan Ritter, an Austrian national. During the questioning of Hitter, Salonga and his team
already left the headquarters and went to their hotel, because at this time Jessie Ramirez
was already shaking with fear after he identified the accused.

The following day, they brought the accused to Olongapo and was detained at the Olongapo
City Jail. The case for Rape with Homicide was filed against him at the City Fiscal of
Olongapo. At the preliminary investigation, accused was assisted by his own counsel. The
private complainant was Maria Burgos Turla because it was she who had custody of Rosario
Baluyot after her mother Anita Burgos died on January 12, 1982, and their father Policarpio
Baluyot had left them under her custody. When this case was filed, the father's whereabouts
was unknown, and he only appeared when the trial of this case before the Court was already
in progress. And upon his (Policarpio Baluyot) own admission, he only learned about the
death of his daughter Rosario Baluyot from the newspaper, long after Rosario was already
gone.

The defense tried to dislodge the case by claiming that there could be no crime of Rape with
Homicide because the suspect was described as an American while Ritter is an Austrian.
Also advanced by the defense is that, it is a case of mistaken identity. That Rosario Baluyot
was at the time of the commission of the offense, already more than 13 years old, she having
been born on December 26, 1973 as per baptismal certificate, wherein it appears that
Rosario Baluyot was baptized on December 25, 1974 and was born on December 26, 1973
as testified to by Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal
Certificate, having custody and possession of the book of baptism for the year 1975, but
admitted that he had no personal knowledge about the matters or entries entered therein.
Likewise, the defense's stand is that the accused cannot be liable for Homicide because a
vibrator is not a weapon of death but it is a thing for the purpose of giving sexual pleasure,
and that the death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the
surgeon and Director of the Olongapo City General Hospital, who operated on her. (Rollo,
pp. 109-116)

On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads
as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution
has established the GUILT of the accused beyond reasonable doubt for the crime of Rape
with Homicide as defined and penalized in Art. 335 No. 3 of the Revised Penal Code, and
hereby sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION PERPETUA, to
indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS (P60,000.00)
Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to
the private prosecutors and to pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following assigned errors allegedly committed by the
court:

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING
THAT THE ALLEGED OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT
IT WAS ACCUSED-APPELLANT WHO COMMITTED IT.

II

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING
THAT ROSARIO BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE
ALLEGED OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE
WITH HOMICIDE.

III

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING
CREDENCE TO AND NOT REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT
UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED.

Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of
the accused has been proved beyond reasonable doubt, it behooves us to exert the most
painstaking effort to examine the records in the light of the arguments of both parties if only to satisfy
judicial conscience that the appellant indeed committed the criminal act (See People v. Villapaña,
161 SCRA 73 [1988]).

The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who
died after the rape because of a foreign object, believed to be a sexual vibrator, left inside her
vagina.

As stated by the trial court one crucial issue in this case is the age of the victim—whether or not
Rosario Baluyot was less than twelve (12) years old at the time the alleged incident happened on
October 10, 1986. The age is important in determining whether or not there was statutory rape,
Article 335 of the Revised Penal Code defines the third type of rape as having carnal knowledge of a
woman under 12 years of age, in which case force, intimidation, deprivation of reason or
unconscious state do not have to be present.

The trial court found that Rosario was below 12 years old when she was sexually abused by the
accused and, therefore, rape was committed inspite of the absence of force or intimidation.

In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother
and father who testified that she was born on December 22, 1975. These oral declarations were
admitted pursuant to then Rule 130, Section 33 of the Rules of Court where, in the absence of a
birth certificate, the act or declaration about pedigree may be received in evidence on any notable
fact in the life of a member of the family. Since birth is a matter of pedigree within the rule which
permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of
birth (Decision, p. 54).
The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because
her brother died in Pampanga and her daughter, Anita (Rosario's mother) was the only one who
failed to attend the funeral because the latter has just given birth allegedly to Rosario (T.S.N. p. 8,
Jan. 13, 1988).

The father likewise testified that as far as he could remember, Rosario was born on December 22,
1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was more than one (1) year old
when she was baptized (T.S.N., p. 45, Jan. 27, 1988).

The trial court further added that their testimony is supported by the clinical record and the death
certificate indicating that she was 12 years old when she was admitted at the Olongapo City General
Hospital for treatment. The age was supplied by Rosario's alleged guardian, Gaspar Alcantara to the
hospital's clinical record clerk, Lorna Limos. Fe Israel, a social worker who interviewed Rosario
Baluyot also testified that she was told by Rosario that she was 12 years old. The trial court
accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in
this case declared that he was born on September 5, 1973 and that he was older than Rosario
Baluyot. Therefore, since he was 13 years old in 1986, Rosario must have been less than 12 yeas
old in 1986. (Decision, p. 55)

The trial court concluded that the oral declarations of the grandmother and father supported by other
independent evidence such as the clinical record, death certificate and the testimonies of Fe Israel
and Jessie Ramirez, rendered the baptismal certificate presented by the defense without any
probative or evidentiary value. (Decision, p. 55)

The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of
evidentiary rules.

The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised
Rules of Court).

For oral evidence to be admissible under this Rule, the requisites are:

(1) That the declarant must be dead or outside of the Philippines or unable to testify;

(2) That pedigree is in issue;

(3) That the person whose pedigree is in question must be related to the declarant by birth or
marriage;

(4) That the declaration must be made before the controversy occurred or ante litem motam;
and

(5) That the relationship between the declarant and the person whose pedigree is in question
must as a general rule be shown by evidence other than such act or declaration.

These requirements were not satisfied by the evidence for the prosecution nor do the declarations
fall within the purview of the rule.

The victim's grandmother and father whose declarations regarding Rosario's age were admitted by
the trial court are both alive, in the Philippines and able to testify as they both did testify in court.
Their declarations were made at the trial which is certainly not before the controversy arose. The
other witnesses who testified on Rosario's age are not members of the victim's family. The
testimonies of Rosario's relatives must be weighed according to their own personal knowledge of
what happened and not as hearsay evidence on matters of family history.

At this point, we find the evidence regarding Rosario's age of doubtful value.

The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid
down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the
mother that her daughter was 14 years old and 4 months old. The mother stated that she knew the
age because the child was born about the time of the cholera epidemic of 1889. This was not
hearsay, but came from one who had direct knowledge of the child's birth.

It is however, equally true that human memory on dates or days is frail and unless the day is an
extraordinary or unusual one for the witness, there is no reasonable assurance of its correctness.
(People v. Dasig 93 Phil. 618, 632 [1953])

With respect to the grandmother's testimony, the date of the brother's death or funeral was never
established, which indicates that the day was rather insignificant to be remembered. The father's
declaration is likewise not entirely reliable. His testimony in court does not at all show that he had
direct knowledge of his daughter's birth. He was certain though that she was more than one (1) year
old at the time she was baptized.

The other witnesses are not at all competent to testify on the victim's age, nor was there any basis
shown to establish their competence for the purpose. The clinical records were based on Gaspar
Alcantara's incompetent information given when he brought the victim to the hospital. Alcantara
came to know her only about a year before her death. He had absolutely no knowledge about the
circumstances of Rosario's birth. The death certificate relied upon by the trial court was merely
based on the clinical records. It is even less reliable as a record of birth.

All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years
old at the time of the alleged incident are not adequate to establish the exact date of birth, much less
offset a documentary record showing a different date.

The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being
hearsay and of no value. As against the oral declarations made by interested witnesses establishing
Rosario's age to be less than 12 years old, the evidence on record is more convincing and worthy of
belief. (See Filinvest Land, Inc. v. Court of Appeals, 183 SCRA 664, 673 [1990]).

By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St.
James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and
stated that he is the head of said parish. He brought with him Baptismal Register No. 9 entitled
"Liber Baptisnorum", a latin term for baptismal book or record. On page 151, No. 3 of the said
Registry Book, there appears the name of Rosario Baluyot who was baptized on December 25,
1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents
of Subic, Zambales. Edita R. Milan appears as the only sponsor with Olongapo City as her address.

In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:

xxx xxx xxx

 In our jurisprudence, this Court has been more definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while baptismal and marriage certificates may be
considered public documents, they are evidence only to prove the administration of the
sacraments on the dates therein specified—but not the veracity of the status or declarations
made therein with respect to his kinsfolk and/or citizenship (Paa v. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court
held that a baptismal certificate is conclusive proof only of the baptism administered, in
conformity with the rites of the Catholic Church by the priest who baptized the child, but it
does not prove the veracity of the declarations and statements contained in the certificate
that concern the relationship of the person baptized. Such declarations and statements, in
order that their truth may be admitted, must indispensably be shown by proof recognized by
law. (At pp. 84-85)

In the same light, the entries made in the Registry Book may be considered as entries made in the
course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The
baptisms administered by the church are one of its transactions in the exercise of ecclesiastical
duties and recorded in a book of the church during the course of its business. (U.S. v. de Vera, 28
Phil. 105 [1914] Hence, the certificate (Exhibit "22") presented by the defense that Rosario Baluyot
was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio
Baluyot, the victim's father testified that he had in his possession a baptismal certificate different
from the one presented in court. However, no other baptismal record was ever presented to prove a
date different from that brought by the official custodian. Since the baptismal certificate states that
Rosario was baptized on December 25, 1974, it is therefore highly improbable that Rosario could
have been born on December 22, 1975. She could not have been baptized before she was born.
Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in
1975. With the father's assertion that Rosario was more than one (1) year old when she was
baptized, we are then more inclined to agree that Rosario was born in 1973 as stated in the
Baptismal Registry.

In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:

xxx xxx xxx

. . . Although no birth certificate was presented because her birth had allegedly not been
registered, her baptismal certificate, coupled by her mother's testimony, was sufficient to
establish that Mary Rose was below twelve years old when she was violated by Rebancos.
(At. p. 426)

Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document
as to Rosario's birth which could serve as sufficient proof that she was born on December 26, 1973.
Therefore, she was more than 12 years old at the time of the alleged incident on October 10, 1986.

Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on
the prosecution to prove that Rosario was less than 12 years old at the time of the alleged incident in
a charge of statutory rape. The prosecution failed in this respect.

Since Rosario was not established to have been under 12 years of age at the time of the alleged
sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that
there was force of intimidation or that she was deprived of reason or otherwise unconscious in
accordance with Article 335 of the Revised Penal Code.
We agree with the defense that there was no proof of such facts. On the contrary, the evidence
shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to
have consented to the act as she was paid P300.00 the next morning while her companion, Jessie
Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988). The environmental circumstances
coupled with the testimonies and evidence presented in court clearly give the impression that
Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life
may have forced her to submit to sex at such a young age but the circumstances do not come under
the purview of force or intimidation needed to convict for rape.

In view of these clear facts which the prosecution failed to refute, no rape was committed. But was
Ritter guilty of homicide?

The trial court justified its ruling by saying that the death of the victim was a consequence of the
insertion of the foreign object into the victim's vagina by the appellant.

We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which
led to her death?

The trial court convicted the accused based on circumstantial evidence. Unfortunately, the
circumstances are capable of varying interpretations and are not enough to justify conviction.

Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina.
Neither could he identify the object (Exhibit "C-2") taken from Rosario as the same object which the
appellant was holding at that time of the alleged incident.

In his sworn statement given to the police investigator on September 4, 1987, he answered that:

xxx xxx xxx

T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng
kano sa kanyang daladalahan kung mayroon man?

S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may
inilabas siya sa kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang
nasa otel kami at pagkatapos niya ay inilapag niya sa lamiseta.

T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?

S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada.
Iyong takip ay bilog na patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang
hugis ng dulo ng bagay na may takip dahil natatakpan ng kamay at ilong ng Amerikano.

T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin
mo nga sa akin kung makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman
sa nakita mong kinuha ng Amerikano sa kanyang bag?

S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng
bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul
gayong ng makita ko ito ay kulay puti? (Exhibit "A", p. 2; Emphasis Supplied)
Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not
deny having possessed at that time. He was certain that the object was white. (T.S.N. p. 91, January
6, 1988)

Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue
(Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency
of the witness' testimony casts doubt as to the veracity of the statements made especially when he
answered on additional cross-examination that the reason why he concluded that Exhibit "C-2" was
the same object being held by Ritter was because it was the only one shown to him by the
prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the
sexual vibrator because he did not actually see it in the possession of the appellant.

What he merely remembers is the revelation made by Rosario the next morning that the foreigner
inserted something inside her vagina. The trial court admitted such statement as part of the res
gestae. In a strained effort to accept such statement as part of res gestae, the trial court focused the
test of admissibility on the lapse of time between the event and the utterance. For the average 13
years old, the insertion of a mechanical device or anything for that matter into the vagina of a young
girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show
that the statement, given after a night's sleep had intervened, was given instinctively because the
event was so startling Res gestae does not apply. (Section 42, Rule 130, Rules of Court)

Even if it were established that the appellant did insert something inside Rosario's vagina, the
evidence is still not adequate to impute the death of Rosario to the appellant's alleged act.

Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We
quote:

Q Now, you also stated on direct examination that later on Rosario even categorically
admitted to you that she was already able to remove the object allegedly inserted inside her
vagina, is that correct?

A Yes, sir.

xxx xxx xxx

ATTY. CARAAN:

Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later
on when you met her when you asked her and when she told you that she was already able
to remove that object from her vagina?

A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And
she answered, "Yes, it was removed." But the same night, she again complained of pain of
her stomach. She sent one of her friends to call for me. And as a matter of fact, Tomboy was
uttering defamatory words against me as she was groaning in pain. (TSN, Jan. 6,1988, pp.
72-73)

This encounter happened on the night of the day following the day after both children were invited by
the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so
we can just imagine the distress she was undergoing at this point in time. If the device inserted by
the appellant caused the pain, it is highly inconceivable how she was able to endure the pain and
discomfort until May, 1987, seven (7) months after the alleged incident. Evidence must not only
proceed from the mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances. (People
vs. Patog, 144 SCRA 429 [1986]).

At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for
the defense is considered an expert witness. (A Doctor of Medicine and a graduate of the State
University in 1940, a degree of Bachelor of Laws and member of the Bar 1949, and a graduate of
the Institute of Criminology University. He was awarded Post Graduate Diploma in Criminology in
1963, and also a graduate of United Nations Asia and Far East Asia Institute on the Prevention of
Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of
Investigation in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the
Deputy Director of the NBI up to 1984. He is at present a Professorial Lecturer on Legal Medicine at
the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal Consultant of the PGH Medical
Center, Makati Medical Center, UERM Medical Center, MCU Medical Center. He has been with the
NBI for 43 years. He has attended no less than 13 conferences abroad. He is the author of the
textbooks entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and
medical background, his testimony is too authoritative to ignore. We quote the pertinent portions of
his testimony:

Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2" which object was
described as a part of a sexual vibrator battery operated. Now, given this kind of object,
would you kindly tell us what would be the probable effect upon a 12 years old girl when it is
inserted into her vagina?

A Well, this vibrator must be considered a foreign body placed into a human being and as
such be considered a foreign object. As a foreign object, the tendency of the body may be:
No. 1—expel the foreign body—No. 2.—The tendency of the body is to react to that foreign
body. One of the reactions that maybe manifested by the person wherein such foreign body
is concerned is to cover the foreign body with human tissue, in a way to avoid its further
injury to the body.

Now, the second reaction is irritation thereby producing certain manifest symptoms and
changes in the area where the foreign body is located.

In severe cases, the symptoms manifestation might not only be localized but may be felt all
over the body, we call it systemic reaction. Now, considering the fact that this foreign body as
shown to me is already not complete, this shows exposure of its different parts for the body
to react. If there is mechanism to cause the foreign body to vibrate, there must be some sort
of power from within and that power must be a dry cell battery. [The] composition of the
battery are, manganese dioxide ammonium, salts, water and any substance that will cause
current flow. All of these substances are irritants including areas of the container and as
such, the primary reaction of the body is to cause irritation on the tissues, thereby
inflammatory changes develop and in all likelihood, aside from those inflammatory changes
would be a supervening infection in a way that the whole generative organ of the woman will
suffer from diseased process causing her the systemic reaction like fever, swelling of the
area, and other systemic symptoms. . . . . (TSN., pp. 13-15, October 19,1988)

xxx xxx xxx

 Q Now, given this object, how long would it take, Doctor before any reaction such as an
infection would set in, how many days after the insertion of this object in the vagina of a 12
year old girl?

A In the example given to me, considering that one of the ends is exposed, in a way that
vaginal secretion has more chance to get in, well, liberation of this irritant chemicals would
be enhanced and therefore in a shorter period of time, there being this vaginal reaction.

Q How many days or weeks would you say would that follow after the insertion?

A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal
usually developed within, a period of two (2) weeks . . .

xxx xxx xxx

Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in
her vagina on October 10, 1986 and she was operated on, on May 19, 1987 the following
year, so it took more than 7 months before this was extracted, would you say that it will take
that long before any adverse infection could set in inside the vagina?

A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19,1988, p.
18)

xxx xxx xxx

Q When you said shorter, how long would that be, Doctor?

A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women
usually, there are only about two (2) weeks time that the patient suffer some abnormal
symptoms.

Q Now, considering that this is a bigger object to the object that you mentioned, this object
has a shorter time?

A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)

The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein
infection sets in upon insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is
not more than 10 months, and this case is still within the said time frame."

A more generous time interval may be allowed in non-criminal cases. But where an accused is
facing a penalty of reclusion perpetua, the evidence against him cannot be based on probabilities
which are less likely than those probabilities which favor him.

It should be clarified that the time frame depends upon the kind of foreign body lodged inside the
body. An examination of the object gave the following results:

(1) Color: Blue

Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
 Composition: Showed the general
characteristics of a styrene-butadiene plastic.

(2) The specimen can be electrically operated by means of a battery as per certification
dated 01 June 1988, signed by Mr. Rodolfo D. Mercuric, Shipboard Electrical Systems
Mechanics, Foreman II, SRF Shop 51, Subic (see attached certification).

(3) No comparative examination was made on specimen #1 and vibrator depicted in the
catalog because no actual physical dimensions and/or mechanical characteristics were
shown in the catalog. (Exhibit "LL")

The vibrator end was further subjected to a macro-photographic examination on the open end
portion which revealed the following:

Result of Examination

Macro-photographic examination on the open end portion of specimen #1 shows the

following inscription:

MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")

From the above results, the subject object is certainly not considered as inert and based on Dr. Solis'
testimony, it is more likely that infection should set in much earlier. Considering also that the object
was inserted inside the vagina which is part of the generative organ of a woman, an organ which is
lined with a very thin layer of membrane with plenty of blood supply, this part of the body is more
susceptible to infection. (T.S.N. p. 34, October 19, 1988)

The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no
reason why his opinions qualified by training and experience should not be controlling and binding
upon the Court in the determination of guilt beyond reasonable doubt. (People v. Tolentino, 166
SCRA 469 [1988]).

Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May
17, 1986 as a referral patient from the Department of Surgery to give an OB-GYN clearance to the
patient prior to operation. (T.S.N. p. 6, September 28, 1988)

Q And how many times did you examine this patient Rosario Baluyot on that day?

A I examined her twice on that day.

Q The first time that you examined her, what is the result of your findings, if any?

A My first examination, I examined the patient inside the delivery room. The patient was
brought to the delivery room wheel-chaired then from the wheel chair, the patient was
ambigatory (sic). She was able to walk from the door to the examining table. On
examination, the patient is conscious, she was fairly nourished, fairly developed, she had
fever, she was uncooperative at that time and examination deals more on the abdomen
which shows slightly distended abdomen with muscle guarding with tenderness all over, with
maximum tenderness over the hypogastric area. (T.S.N. p. 5, September 28, 1988)

xxx xxx xxx

 Q What about your second examination to the patient, what was your findings, if any?

A In my second examination, I repeated the internal examination wherein I placed my index

finger and middle finger inside the vagina of the patient and was able to palpate a hard
object. After which, I made a speculum examination wherein I was able to visualize the inner
portion of the vaginal canal, there I saw purulent foul smelling, blood tints, discharge in the
vaginal canal and a foreign body invaded on the posterior part of the vaginal canal.

xxx xxx xxx

A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the
said foreign object by the use of forceps which I tried to do so also but I failed to extract the
same.

Q All this time that you were examining the patient Rosario Baluyot both in the first and
second instance, Rosario Baluyot was conscious and were you able to talk to her when you
were examining her?

A Yes, sir.

Q And did you ask her why there is a foreign object lodge inside her vagina?

A Yes, Sir I asked her.

Q And what did she tell you, if any?

A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY
NITO."

Q Did she also tell you when, this Negro who used her and who inserted and placed the
foreign object on her vagina?

A Yes, Sir I asked her and she said he used me three (3) months ago from the time I
examined her.

Q Now, you said that you referred the patient to the ward, what happened next with your
patient?

A To my knowledge, the patient is already scheduled on operation on that date.

Q Meaning, May 17, 1987?

A Yes, Sir I was presuming that the patient would undergo surgery after that?

(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)

The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that time. It ruled
that it is inconceivable that she would be striking a normal conversation with the doctors and would
be sitting on the examination table since Gaspar Alcantara stated that when he brought Rosario
Baluyot to the hospital, she was unconscious and writhing in pain.
It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because
there were several instances testified to by different witnesses that she was still able to talk prior to
her operation:

(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic
Renewal Movement testified that as a member of this group she visits indigent children in the
hospital every Saturday and after office hours on working days.

On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario
Baluyot. In fact, one of her groupmates helped Rosario go to the comfort room to urinate. (T.S.N.,
pp. 16-19, May 25, 1988)

(2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope
John 23rd Community Center under Sister Eva Palencia. In one of her hospital visits, she
encountered Rosario Baluyot in the month of May, 1987. She actually saw a child who happened to
be Rosario Baluyot seated on the cement floor and when she asked why she was seated there, she
was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days successively.
(T.S.N. pp. 10-13, September 7, 1988)

(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was
conscious (T.S.N. p. 36, September 14, 1988) but writhing in pain. He took pity on her so he brought
her to the hospital (T.S.N. p. 12, September 14, 1988)

From the above testimonies, it is clear that Rosario was still conscious and could still answer
questions asked of her although she was complaining of stomach pains. Unfortunately, the medical
attention given to her failed to halt the aggravation of her condition. The operation on May 19 was
too late.

Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis,
which is massive infection, in the abdominal cavity caused by the foreign object or the cut sexual
vibrator lodged in the vagina of the victim. This led to the infection from the uterus to the fallopian
tubes and into the peritoneum and the abdominal cavity.

The trial court convicted the accused citing the rationale of Article 4 of the RPC

He who is the cause of the cause is the cause of the evil caused.

But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs.
Intermediate Appellate Court (157 SCRA 1 [1988]) to wit:

The rule is that the death of the victim must be the direct, natural and logical consequence of
the wounds inflicted upon him by the accused. And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must convince a rational
mind beyond reasonable doubt. (Emphasis supplied)

In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:

xxx xxx xxx

The basic principle in every criminal prosecution is that accusation is not synonymous with
guilt. The accused is presumed innocent until the contrary is proved by the prosecution. If the
 prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner of speaking, he goes to bat with all the
bases loaded. The odds are heavily against him. It is important, therefore, to equalize the
positions of the prosecution and the defense by presuming the innocence of the accused
until the state is able to refute the presumption by proof of guilt beyond reasonable doubt.
(At. p. 592)

The evidence for the accused maybe numerically less as against the number of witnesses and
preponderance of evidence presented by the prosecution but there is no direct and convincing proof
that the accused was responsible for the vibrator left inside the victim's vagina which caused her
death seven (7) months after its insertion. What the prosecution managed to establish were mere
circumstances which were not sufficient to overcome the constitutional presumption of innocence.
While circumstantial evidence may suffice to support a conviction it is imperative, though, that the
following requisites should concur:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court)

For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial
evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the
crime (People v. Subano, 73 Phil. 692 [1942]; Emphasis supplied). It must fairly exclude every
reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In
this case the circumstantial evidence presented by the prosecution does not conclusively point to the
liability of the appellant for the crime charged. (People v. Tolentino, supra)

We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death
exemplified starkly the daily terrors that most street children encounter as they sell their bodies in
order to survive. At an age when innocence and youthful joys should preponderate in their lives, they
experience life in its most heartless and inhuman form. Instead of nothing more than gentle
disappointments occupying their young minds, they daily cope with tragedies that even adults should
never be made to carry.

It is with distressing reluctance that we have to seemingly set back the efforts of Government to
dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street
children. It would have meant a lot to social workers and prosecutors alike if one pedophile-killer
could be brought to justice so that his example would arouse public concern, sufficient for the
formulation and implementation of meaningful remedies. However, we cannot convict on anything
less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal
justice system are as much, if not more so, for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.

The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that
the accused did commit the offense has not been satisfied.

By way of emphasis, we reiterate some of the factors arousing reasonable doubt:

 1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being
less than 12 years old when the carnal knowledge took place. If the evidence for the
prosecution is to be believed, she was not yet born on the date she was baptized.

2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the
prosecution has to prove force, intimidation, or deprivation of reason in order to convict for
rape. There is no such proof. In fact, the evidence shows a willingness to submit to the
sexual act for monetary considerations.

3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was
Jessie Ramirez. This witness did not see Ritter insert the vibrator. The morning after the
insertion, he was only told by Rosario about it. Two days later, he allegedly met Rosario who
informed him that she was able to remove the object. And yet, Ramirez testified that on the
night of that second encounter, he saw Rosario groaning because of pain in her stomach.
She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also
contradictory.

4. It was improbable, according to expert medical testimony, for a foreign object with active
properties to cause pain, discomfort, and serious infection only after seven months inside a
young girl's vaginal canal. Infection would have set in much earlier. Jessie Ramirez recalled
that the incident happened in December of 1986. (TSN., January 6, 1988, pp. 15-17) The
evidence, however shows that the appellant was not here in the Philippines that December.
As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter arrived
in the Philippines on October 7, 1986 and left on October 12, 1986. He never returned until
September 23, 1987 (Exhibits "DD" and "EE") The incident could have happened only in
October, but then it would have been highly improbable for the sexual vibrator to stay inside
the vagina for seven (7) months with the kind of serious complications it creates.

5. The gynecologist who attended to Rosario during her hospital confinement testified that
she told him "Ginamit ako ng Negro at siya ang naglagay nito." The accused is not a black.

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident.
Considering Dr. Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months
prior to admission in the hospital and Rosario's unfortunate profession, there is always the possibility
that she could have allowed herself to be violated by this perverse kind of sexual behavior where a
vibrator or vibrators were inserted into her vagina between October, 1986 and May, 1987.

Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime
renders the evidence for the prosecution insufficient to establish appellant's guilty connection with
the requisite moral certainty. (SeePeople v. Mula Cruz, 129 SCRA 156 [1984]).

The established facts do not entirely rule out the possibility that the appellant could have inserted a
foreign object inside Rosario's vagina. This object may have caused her death. It is possible that the
appellant could be the guilty person. However, the Court cannot base an affirmance of conviction
upon mere possibilities. Suspicions and possibilities are not evidence and therefore should not be
taken against the accused. (People v. Tolentino, supra)

Well-established is the rule that every circumstance favorable to the accused should be duly taken
into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates
the mores of civilized society. The evidence against the accused must survive the test of reason.
The strongest suspicion must not be allowed to sway judgment. (See Sacay v. Sandiganbayan, 142
SCRA 593 [1986]). As stated in the case of People v. Ng (142 SCRA 615 [1986]):
 . . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt
in criminal cases must be resolved in favor of the accused. The requirement of proof beyond
reasonable doubt calls for moral certainty of guilt. It has been defined as meaning such proof
"to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes
every reasonable hypothesis except that which it is given to support. It is not sufficient for the
proof to establish a probability, even though strong, that the fact charged is more likely to be
true than the contrary. It must establish the truth of the fact to a reasonable and moral
certainty—a certainty that convinces and satisfies the reason and the conscience of those
who are to act upon it. (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S.
v. Reyes, 3 Phil. 3). . . .

In the instant case, since there are circumstances which prevent our being morally certain of the guilt
of the appellant, he is, therefore, entitled to an acquittal.

This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie
Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are
convinced that he comes to this country not to look at historical sights, enrich his intellect or indulge
in legitimate pleasures but in order to satisfy the urgings of a sick mind.

With the positive Identification and testimony by Jessie Ramirez that it was the appellant who picked
him and Rosario from among the children and invited them to the hotel; and that in the hotel he was
shown pictures of young boys like him and the two masturbated each other, such actuations clearly
show that the appellant is a pedophile. When apprehended in Ermita, he was sizing up young
children. Dr. Solis defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows:

Pedophilia—A form of sexual perversion wherein a person has the compulsive desire to
have sexual intercourse with a child of either sex. Children of various ages participate in
sexual activities, like fellatio, cunnilingus, fondling with sex organs, or anal sexual
intercourse. Usually committed by a homosexual between a man and a boy the latter being a
passive partner.

Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself.
Pedophilia is clearly a behavior offensive to public morals and violative of the declared policy of the
state to promote and protect the physical, moral, spiritual and social well-being of our youth. (Article
II, Section 13, 1987 Constitution) (Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]).
Pedophiles, especially thrill seeking aliens have no place in our country.

In this case, there is reasonable ground to believe that the appellant committed acts injurious not
only to Rosario Baluyot but also to the public good and domestic tranquility of the people. The state
has expressly committed itself to defend the right of children to assistance and special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has abused
Filipino children, enticing them with money. The appellant should be expelled from the country.

Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is
impliedly instituted with the criminal action. (Rule III, Section 1) The well-settled doctrine is that a
person while not criminally liable, may still be civilly liable. We reiterate what has been stated
in Urbano v. IAC, supra.

. . . While the guilt of the accused in a criminal prosecution must be established beyond
reasonable doubt, only a preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of
 the accused only when it includes a declaration that the facts from which the civil liability
might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal
of the accused on the ground that his guilt has not been proved beyond reasonable doubt
does not necessarily exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him
from civil liability is one of the most serious flaws in the Philippine legal system. It has
given rise to numberless instances of miscarriage of justice, where the acquittal was
due to a reasonable doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is derived from the
criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of demarcation
between criminal liability and civil responsibility, and to determine the logical result of
the distinction. The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the punishment or
correction of the offender while the other is for the reparation of damages suffered by
the aggrieved party. The two responsibilities are so different from each other that
article 1813 of the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public action for the
imposition of the legal penalty shall not thereby be extinguished." It is just and proper
that, for the purposes of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of indemnifying the
complaining party, why should the offense also be proved beyond reasonable doubt?
Is not the invasion or violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved person any less private
because the wrongful act is also punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under
discussion. It will correct a serious defect in our law. It will close up an inexhaustible
source of injustice—a cause for disillusionment on the part of the innumerable
persons injured or wronged.

Rosario Baluyot is a street child who ran away from her grandmother's house. Circumstances
1âwphi1

forced her to succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs
who have certainly suffered mental anguish, anxiety and moral shock by her sudden and incredulous
death as reflected in the records of the case. Though we are acquitting the appellant for the crime of
rape with homicide, we emphasize that we are not ruling that he is innocent or blameless. It is only
the constitutional presumption of innocence and the failure of the prosecution to build an airtight
case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier
stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's
vaginal canal and that the vibrator may have caused her death. True, we cannot convict on
probabilities or possibilities but civil liability does not require proof beyond reasonable doubt. The
Court can order the payment of indemnity on the facts found in the records of this case.

The appellant certainly committed acts contrary to morals, good customs, public order or public
policy (see Article 21 Civil Code). As earlier mentioned, the appellant has abused Filipino children,
enticing them with money. We can not overstress the responsibility for proper behavior of all adults
in the Philippines, including the appellant towards young children. The sexual exploitation committed
by the appellant should not and can not be condoned. Thus, considering the circumstances of the
case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.

And finally, the Court deplores the lack of criminal laws which will adequately protect street children
from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from
the sale of young bodies. The provisions on statutory rape and other related offenses were never
intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among
the forgotten segments of our society. Newspaper and magazine articles, media exposes, college
dissertations, and other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them will continue
to advertise the availability of Filipino street children unless the Government acts and acts soon. We
have to acquit the appellant because the Bill of Rights commands us to do so. We, however,
express the Court's concern about the problem of street children and the evils committed against
them. Something must be done about it.

WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH
STEFAN RITTER is ACQUITTED on grounds of reasonable doubt. The appellant is ordered to pay
the amount of P30,000.00 by way of moral and exemplary damages to the heirs of Rosario Baluyot.
The Commissioner of Immigration and Deportation is hereby directed to institute proper deportation
proceedings against the appellant and to immediately expel him thereafter with prejudice to re-entry
into the country.

SO ORDERED.

G.R. No. 161921 July 17, 2013

JOYCE V. ARDIENTE, PETITIONER,

vs.
SPOUSES JAVIER AND MA. THERESA PASTORFIDE, CAGAYAN DE ORO WATER DISTRICT
AND GASPAR GONZALEZ,* JR., RESPONDENTS.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Decision1 and Resolution2 of the Court of Appeals (CA), dated August 28,
2003 and December 17, 2003, respectively, in CA-G.R. CV No. 73000. The CA Decision affirmed
with modification the August 15, 2001 Decision3of the Regional Trial Court (RTC) of Cagayan de Oro
City, Branch 24, while the CA Resolution denied petitioner's Motion for Reconsideration.

The facts, as summarized by the CA, are as follows:

[Herein petitioner] Joyce V. Ardiente and her husband Dr. Roberto S. Ardiente are owners of a
housing unit at Emily Homes, Balulang, Cagayan de Oro City with a lot area of one hundred fifty-
three (153) square meters and covered by Transfer Certificate of Title No. 69905.

On June 2, 1994, Joyce Ardiente entered into a Memorandum of Agreement (Exh. "B", pp. 470-473,
Records) selling, transferring and conveying in favor of [respondent] Ma. Theresa Pastorfide all their
rights and interests in the housing unit at Emily Homes in consideration of ₱70,000.00. The
Memorandum of Agreement carries a stipulation:

"4. That the water and power bill of the subject property shall be for the account of the Second Party
(Ma. Theresa Pastorfide) effective June 1, 1994." (Records, p. 47)

vis-a-vis Ma. Theresa Pastorfide's assumption of the payment of the mortgage loan secured by
Joyce Ardiente from the National Home Mortgage (Records, Exh. "A", pp. 468-469)

For four (4) years, Ma. Theresa's use of the water connection in the name of Joyce Ardiente was
never questioned nor perturbed (T.S.N., October 31, 2000, pp. 7-8) until on March 12, 1999, without
notice, the water connection of Ma. Theresa was cut off. Proceeding to the office of the Cagayan de
Oro Water District (COWD) to complain, a certain Mrs. Madjos told Ma. Theresa that she was
delinquent for three (3) months corresponding to the months of December 1998, January 1999, and
February 1999. Ma. Theresa argued that the due date of her payment was March 18, 1999 yet
(T.S.N., October 31, 2000, pp. 11-12). Mrs. Madjos later told her that it was at the instance of Joyce
Ardiente that the water line was cut off (T.S.N., February 5, 2001, p. 31).

On March 15, 1999, Ma. Theresa paid the delinquent bills (T.S.N., October 31, 2000, p. 12). On the
same date, through her lawyer, Ma. Theresa wrote a letter to the COWD to explain who authorized
the cutting of the water line (Records, p. 160).

On March 18, 1999, COWD, through the general manager, [respondent] Gaspar Gonzalez, Jr.,
answered the letter dated March 15, 1999 and reiterated that it was at the instance of Joyce Ardiente
that the water line was cut off (Records, p. 161).

Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and her husband] filed [a] complaint for
damages [against petitioner, COWD and its manager Gaspar Gonzalez] (Records, pp. 2-6).

In the meantime, Ma. Theresa Pastorfide's water line was only restored and reconnected when the
[trial] court issued a writ of preliminary mandatory injunction on December 14, 1999 (Records, p.
237).4

After trial, the RTC rendered judgment holding as follows:

xxxx

In the exercise of their rights and performance of their duties, defendants did not act with justice,
gave plaintiffs their due and observe honesty and good faith. Before disconnecting the water supply,
defendants COWD and Engr. Gaspar Gonzales did not even send a disconnection notice to plaintiffs
as testified to by Engr. Bienvenido Batar, in-charge of the Commercial Department of defendant
COWD. There was one though, but only three (3) days after the actual disconnection on March 12,
1999. The due date for payment was yet on March 15. Clearly, they did not act with justice. Neither
did they observe honesty.

They should not have been swayed by the prodding of Joyce V. Ardiente. They should have
investigated first as to the present ownership of the house. For doing the act because Ardiente told
them, they were negligent. Defendant Joyce Ardiente should have requested before the cutting off of
the water supply, plaintiffs to pay. While she attempted to tell plaintiffs but she did not have the
patience of seeing them. She knew that it was plaintiffs who had been using the water four (4) years
ago and not hers. She should have been very careful. x x x5
The dispositive portion of the trial court's Decision reads, thus:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants [Ardiente,

COWD and Gonzalez] to pay jointly and severally plaintiffs, the following sums:

(a) ₱200,000.00 for moral damages;

(b) 200,000.00 for exemplary damages; and

(c) 50,000.00 for attorney's fee.

The cross-claim of Cagayan de Oro Water District and Engr. Gaspar Gonzales is hereby dismissed.
The Court is not swayed that the cutting off of the water supply of plaintiffs was because they were
influenced by defendant Joyce Ardiente. They were negligent too for which they should be liable.

SO ORDERED.6

Petitioner, COWD and Gonzalez filed an appeal with the CA.

On August 28, 2003, the CA promulgated its assailed Decision disposing as follows:

IN VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED, with the modification that
the awarded damages is reduced to ₱100,000.00 each for moral and exemplary damages, while
attorney's fees is lowered to ₱25,000.00. Costs against appellants.

SO ORDERED.7

The CA ruled, with respect to petitioner, that she has a "legal duty to honor the possession and use
of water line by Ma. Theresa Pastorfide pursuant to their Memorandum of Agreement" and "that
when [petitioner] applied for its disconnection, she acted in bad faith causing prejudice and [injury to]
Ma. Theresa Pastorfide."8

As to COWD and Gonzalez, the CA held that they "failed to give a notice of disconnection and
derelicted in reconnecting the water line despite payment of the unpaid bills by the [respondent
spouses Pastorfide]."9

Petitioner, COWD and Gonzalez filed their respective Motions for Reconsideration, but these were
denied by the CA in its Resolution dated December 17, 2003.

COWD and Gonzalez filed a petition for review on certiorari with this Court, which was docketed as
G.R. No. 161802. However, based on technical grounds and on the finding that the CA did not
commit any reversible error in its assailed Decision, the petition was denied via a Resolution10 issued
by this Court on March 24, 2004. COWD and Gonzalez filed a motion for reconsideration, but the
same was denied with finality through this Court's Resolution11 dated June 28, 2004.

Petitioner, on the other hand, timely filed the instant petition with the following Assignment of Errors:

7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT HAS REDUCED THE LIABILITY

INTO HALF) HAS STILL COMMITTED GRAVE AND SERIOUS ERROR WHEN IT UPHELD
THE JOINT AND SOLIDARY LIABILITY OF PETITIONER JOYCE V. ARDIENTE WITH
CAGAYAN DE ORO WATER DISTRICT (COWD) AND ENGR. GASPAR D. GONZALES
 FOR THE LATTER'S FAILURE TO SERVE NOTICE UPON RESPONDENTS SPOUSES
PASTORFIDE PRIOR TO THE ACTUAL DISCONNECTION DESPITE EVIDENCE
ADDUCED DURING TRIAL THAT EVEN WITHOUT PETITIONER'S REQUEST, COWD
WAS ALREADY SET TO EFFECT DISCONNECTION OF RESPONDENTS' WATER
SUPPLY DUE TO NON-PAYMENT OF ACCOUNT FOR THREE (3) MONTHS.

7.2 THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS

ERROR WHEN IT RULED TOTALLY AGAINST PETITIONER AND FAILED TO FIND THAT
RESPONDENTS ARE GUILTY OF CONTRIBUTORY NEGLIGENCE WHEN THEY FAILED
TO PAY THEIR WATER BILLS FOR THREE MONTHS AND TO MOVE FOR THE
TRANSFER OF THE COWD ACCOUNT IN THEIR NAME, WHICH WAS A VIOLATION OF
THEIR MEMORANDUM OF AGREEMENT WITH PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY FAILED TO EXERCISE DILIGENCE OF A
GOOD FATHER OF THE FAMILY TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF
THE NEW CIVIL CODE.

7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT

DISREGARDED THE FACT THAT RESPONDENT SPOUSES PASTORFIDE ARE
LIKEWISE BOUND TO OBSERVE ARTICLE 19 OF THE NEW CIVIL CODE, i.e., IN THE
EXERCISE OF THEIR RIGHTS AND IN THE PERFORMANCE OF THEIR DUTIES TO ACT
WITH JUSTICE, GIVE EVERYONE HIS DUE AND OBSERVE HONESTY AND GOOD
FAITH.

7.4 THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT GRANTED AN

AWARD OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS
AGAINST PETITIONER ARDIENTE.12

At the outset, the Court noticed that COWD and Gonzalez, who were petitioner's co-defendants
before the RTC and her co-appellants in the CA, were impleaded as respondents in the instant
petition. This cannot be done. Being her co-parties before the RTC and the CA, petitioner cannot, in
the instant petition for review on certiorari, make COWD and Gonzalez, adversary parties. It is a
grave mistake on the part of petitioner's counsel to treat COWD and Gonzalez as respondents.
There is no basis to do so, considering that, in the first place, there is no showing that petitioner filed
a cross-claim against COWD and Gonzalez. Under Section 2, Rule 9 of the Rules of Court, a cross-
claim which is not set up shall be barred. Thus, for failing to set up a cross-claim against COWD and
Gonzalez before the RTC, petitioner is already barred from doing so in the present petition.

More importantly, as shown above, COWD and Gonzalez's petition for review on certiorari filed with
this Court was already denied with finality on June 28, 2004, making the presently assailed CA
Decision final and executory insofar as COWD and Gonzalez are concerned. Thus, COWD and
Gonzalez are already precluded from participating in the present petition. They cannot resurrect their
lost cause by filing pleadings this time as respondents but, nonetheless, reiterating the same prayer
in their previous pleadings filed with the RTC and the CA.

As to the merits of the instant petition, the Court likewise noticed that the main issues raised by
petitioner are factual and it is settled that the resolution of factual issues is the function of lower
courts, whose findings on these matters are received with respect and considered binding by the
Supreme Court subject only to certain exceptions, none of which is present in this instant
petition.13 This is especially true when the findings of the RTC have been affirmed by the CA as in
this case.14

In any case, a perusal of the records at hand would readily show that the instant petition lacks merit.
Petitioner insists that she should not be held liable for the disconnection of respondent spouses'
water supply, because she had no participation in the actual disconnection. However, she admitted
in the present petition that it was she who requested COWD to disconnect the Spouses Pastorfide's
water supply. This was confirmed by COWD and Gonzalez in their cross-claim against petitioner.
While it was COWD which actually discontinued respondent spouses' water supply, it cannot be
denied that it was through the instance of petitioner that the Spouses Pastorfide's water supply was
disconnected in the first place.

It is true that it is within petitioner's right to ask and even require the Spouses Pastorfide to cause the
transfer of the former's account with COWD to the latter's name pursuant to their Memorandum of
Agreement. However, the remedy to enforce such right is not to cause the disconnection of the
respondent spouses' water supply. The exercise of a right must be in accordance with the purpose
for which it was established and must not be excessive or unduly harsh; there must be no intention
to harm another.15 Otherwise, liability for damages to the injured party will attach.16 In the present
case, intention to harm was evident on the part of petitioner when she requested for the
disconnection of respondent spouses’ water supply without warning or informing the latter of such
request. Petitioner claims that her request for disconnection was based on the advise of COWD
personnel and that her intention was just to compel the Spouses Pastorfide to comply with their
agreement that petitioner's account with COWD be transferred in respondent spouses' name. If such
was petitioner's only intention, then she should have advised respondent spouses before or
immediately after submitting her request for disconnection, telling them that her request was simply
to force them to comply with their obligation under their Memorandum of Agreement. But she did not.
What made matters worse is the fact that COWD undertook the disconnection also without prior
notice and even failed to reconnect the Spouses Pastorfide’s water supply despite payment of their
arrears. There was clearly an abuse of right on the part of petitioner, COWD and Gonzalez. They are
guilty of bad faith.

The principle of abuse of rights as enshrined in Article 19 of the Civil Code provides that every
person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

In this regard, the Court's ruling in Yuchengco v. The Manila Chronicle Publishing Corporation17 is
instructive, to wit:

xxxx

This provision of law sets standards which must be observed in the exercise of one’s rights as well
as in the performance of its duties, to wit: to act with justice; give everyone his due; and observe
honesty and good faith.

In Globe Mackay Cable and Radio Corporation v. Court of Appeals, it was elucidated that while
Article 19 "lays down a rule of conduct for the government of human relations and for the
maintenance of social order, it does not provide a remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be proper." The Court said:

One of the more notable innovations of the New Civil Code is the codification of "some basic
principles that are to be observed for the rightful relationship between human beings and for the
stability of the social order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL
CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the
old Code which merely stated the effects of the law, but failed to draw out its spirit, incorporated
certain fundamental precepts which were "designed to indicate certain norms that spring from the
fountain of good conscience" and which were also meant to serve as "guides for human conduct
[that] should run as golden threads through society, to the end that law may approach its supreme
ideal, which is the sway and dominance of justice." (Id.) Foremost among these principles is that
pronounced in Article 19 x x x.

xxxx

This article, known to contain what is commonly referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in the exercise of one's rights, but also in the
performance of one's duties. These standards are the following: to act with justice; to give everyone
his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation
on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be
observed. A right, though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is exercised in a manner which
does not conform with the norms enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19
lays down a rule of conduct for the government of human relations and for the maintenance of social
order, it does not provide a remedy for its violation. Generally, an action for damages under either
Article 20 or Article 21 would be proper.

Corollarilly, Article 20 provides that "every person who, contrary to law, willfully or negligently causes
damage to another shall indemnify the latter for the same." It speaks of the general sanctions of all
other provisions of law which do not especially provide for its own sanction. When a right is
exercised in a manner which does not conform to the standards set forth in the said provision and
results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be
responsible. Thus, if the provision does not provide a remedy for its violation, an action for damages
under either Article 20 or Article 21 of the Civil Code would be proper.

The question of whether or not the principle of abuse of rights has been violated resulting in
damages under Article 20 or other applicable provision of law, depends on the circumstances of
each case. x x x18

To recapitulate, petitioner's acts which violated the abovementioned provisions of law is her
unjustifiable act of having the respondent spouses' water supply disconnected, coupled with her
failure to warn or at least notify respondent spouses of such intention. On the part of COWD and
Gonzalez, it is their failure to give prior notice of the impending disconnection and their subsequent
neglect to reconnect respondent spouses' water supply despite the latter's settlement of their
delinquent account.

On the basis of the foregoing, the Court finds no cogent reason to depart from the ruling of both the
RTC and the CA that petitioner, COWD and Gonzalez are solidarily liable.

The Spouses Pastorfide are entitled to moral damages based on the provisions of Article 2219,19 in
connection with Articles 2020 and 2121 of the Civil Code.

As for exemplary damages, Article 2229 provides that exemplary damages may be imposed by way
of example or correction for the public good. Nonetheless, exemplary damages are imposed not to
enrich one party or impoverish another, but to serve as a deterrent against or as a negative incentive
to curb socially deleterious actions.22 In the instant case, the Court agrees with the CA in sustaining
the award of exemplary damages, although it reduced the amount granted, considering that
respondent spouses were deprived of their water supply for more than nine (9) months, and such
deprivation would have continued were it not for the relief granted by the RTC.
With respect to the award of attorney's fees, Article 2208 of the Civil Code provides, among others,
that such fees may be recovered when exemplary damages are awarded, when the defendant's act
or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect
his interest, and where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs’ plainly valid, just and demandable claim.

WHEREFORE, instant petition for review on certiorari is DENIED. The Decision and Resolution of
the Court of Appeals, dated August 28, 2003 and December 17, 2003, respectively, in CA-G.R. CV
No. 73000 are AFFIRMED.

SO ORDERED.

PREJUDICIAL QUESTION

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,

vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA,
BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.

Leopoldo P. Dela Rosa for petitioner.

Emiterio C. Manibog for private respondent.

City Fiscal of Manila for public respondent.

GANCAYCO, J.:

In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a criminal
case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of marriage
pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent
judge ruled in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila
acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein
petitioner, Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case
No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the
complaint of private respondent Paz B. Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed with the
Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her
marriage with petitioner contracted on September 26, 1978, which action was docketed as Civil
Case No. E-02627. Said civil case was based on the ground that private respondent consented to
entering into the marriage, which was petitioner Donato's second one, since she had no previous
knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978.
Petitioner Donato's answer in the civil case for nullity interposed the defense that his second
marriage was void since it was solemnized without a marriage license and that force, violence,
intimidation and undue influence were employed by private respondent to obtain petitioner's consent
to the marriage. Prior to the solemnization of the subsequent or second marriage, petitioner and
private respondent had lived together and deported themselves as husband and wife without the
benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by
them on September 26, 1978, for which reason, the requisite marriage license was dispensed with
pursuant to Article 76 of the New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to
suspend the proceedings of said case contending that Civil Case No. E-02627 seeking the
annulment of his second marriage filed by private respondent raises a prejudicial question which
must first be determined or decided before the criminal case can proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the
proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the
ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the proceedings
in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds
for suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs.
Ejercito 2 which was a much later case than that cited by respondent judge in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April 14,
1980, for lack of merit. Hence, the present petition for certiorari and prohibition with preliminary
injunction.

A prejudicial question has been defined to be one which arises in a case, the resolution of which
question is a logical antecedent of the issue involved in said case, and the cognizance of which
pertains to another tribunal.3 It is one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the accused, and for it to
suspend the criminal action, it must appear not only that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in the resolution of the issue
or issues raised in the civil case, the guilt or innocence of the accused would necessarily be
determined. 4 A prejudicial question usually comes into play in a situation where a civil action and a
criminal action may proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the accused in a criminal case.5

The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the
issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second
marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy.
Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed
the complaint for annulment of the second marriage on the ground that her consent was obtained
through deceit.

Petitioner Donato raised the argument that the second marriage should have been declared null and
void on the ground of force, threats and intimidation allegedly employed against him by private
respondent only sometime later when he was required to answer the civil action for anulment of the
second marriage. The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied
to the present case. Said case states that:

The mere fact that there are actions to annul the marriages entered into by the
accused in a bigamy case does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the suspension of the case. In order
that the case of annulment of marriage be considered a prejudicial question to the
 bigamy case against the accused, it must be shown that the petitioner's consent to
such marriage must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be involuntary and
cannot be the basis of his conviction for the crime of bigamy. The situation in the
present case is markedly different. At the time the petitioner was indicted for bigamy
on February 27, 1963, the fact that two marriage ceremonies had been contracted
appeared to be indisputable. And it was the second spouse, not the petitioner who
filed the action for nullity on the ground of force, threats and intimidation. And it was
only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-
party complaint against the first spouse alleging that his marriage with her should be
declared null and void on the ground of force, threats and intimidation. Assuming that
the first marriage was null and void on the ground alleged by petitioner, the fact
would not be material to the outcome of the case. Parties to the marriage should not
be permitted to judge for themselves its nullity, for the same must be submitted to the
judgment of the competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration the
presumption is that the marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy. The lower court therefore, has not abused much
less gravely abused, its discretion in failing to suspend the hearing as sought by
petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage
has been obtained by the use of threats, force and intimidation.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later
case and as such it should be the one applied to the case at bar. We cannot agree. The situation in
the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who
was charged with bigamy for having contracted a second marriage while a previous one existed.
Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of
duress, as contra-distinguished from the present case wherein it was private respondent Paz B.
Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the
ground that her consent was obtained through deceit since she was not aware that petitioner's
marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil
case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or
innocence of the accused in the criminal case. In the present case, there is as yet no such judgment
in the civil case.

Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule
on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial
question to the bigamy case against the accused only if it is proved that the petitioner's consent to
such marriage was obtained by means of duress, violence and intimidation in order to establish that
his act in the subsequent marriage was an involuntary one and as such the same cannot be the
basis for conviction. The preceding elements do not exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the
criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978,
he had been living with private respondent Paz B. Abayan as husband and wife for more than five
years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by
private respondent through force, violence, intimidation and undue influence in entering a
subsequent marriage is belled by the fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband and wife without benefit of marriage
for five years, one month and one day until their marital union was formally ratified by the second
marriage and that it was private respondent who eventually filed the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only when Civil
Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the
solemnization of the second marriage that petitioner came up with the story that his consent to the
marriage was secured through the use of force, violence, intimidation and undue influence.
Petitioner also continued to live with private respondent until November 1978, when the latter left
their abode upon learning that Leonilo Donato was already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not
err in his earlier order. There is no pivotal issue that must be pre-emptively resolved in Civil Case
No. E-02627 before proceedings in the criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the
respondent judge dated April 14, 1980 should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit.
We make no pronouncement as to costs.

SO ORDERED.

NATURAL PERSONS

Roe v Wade

Summary of the Decision

The Supreme Court decided in favor of Roe in a 7-2 decision. Justice Blackmun wrote the opinion for the majority, which
recognized that a woman’s choice whether to have an abortion is protected by her right to privacy. Justices Stewart,
Burger and Douglas wrote concurring opinions. Justices White and Rehnquist dissented.
The majority determined that a woman’s right to decide whether to have an abortion involved the question of whether
the Constitution protected a right to privacy. The justices answered this question by asserting that the Fourteenth
Amendment, which prohibits states from “depriv[ing] any person of … liberty … without due process of law,” protected a
fundamental right to privacy. Further, after considerable discussion of the law’s historical lack of recognition of rights of a
fetus, the justices concluded “the word ‘person’, as used in the Fourteenth Amendment, does not include the unborn.” The
right of a woman to choose to have an abortion fell within this fundamental right to privacy, and was protected by the
Constitution.
A woman’s right to choose to have an abortion was not considered an absolute right. The Court stated that government
restrictions on a woman’s right to choose were subject to the highest standard of review, that of strict scrutiny. This level
of review requires that in order to be enforceable, a government regulation of this right must be shown to be narrowly
tailored to a meet a compelling state interest. The justices noted that states did have some legitimate interests in
regulating or prohibiting abortions. The first interest was the protection of the health of the mother from the dangers of
abortion procedures; the second was the protection of the life of the fetus. While these interests were not very strong in
the early stages of pregnancy, they became stronger (more compelling) in the later stages of the pregnancy. Striking a
balance between a woman’s right to privacy and a state’s interests, the Court set up a framework laying out when states
could regulate and even prohibit abortions.
According to the framework, in the first trimester (the first three months of the pregnancy), a woman’s right to privacy
surrounding the choice to have an abortion outweighed a state’s interests in regulating this decision. In the first
trimester, having an abortion does not pose a grave danger to the life and health of the mother, and the fetus is still
undeveloped. The state’s interests are not yet compelling, so it cannot interfere with a woman’s right to privacy by
regulating or prohibiting her from having an abortion during the first trimester. During the second trimester, the state’s
interests become more compelling as the danger of complications increases and the fetus becomes more
developed. During this stage, it may regulate, but not prohibit abortions, as long as the regulations are aimed at
protecting the health of the mother. During the third trimester, the danger to the woman’s health becomes the greatest
and fetal development nears completion. In the final trimester the state’s interests in protecting the health of the mother
and in protecting the life of the fetus become their most compelling. The state may regulate or even prohibit abortions
during this stage, as long as there is an exception for abortions necessary to preserve the life and health of the mother.
In his dissenting opinion, Justice Rehnquist argued that the framers of the Fourteenth Amendment did not intend for it to
protect a right of privacy, a right which they did not recognize, and that they definitely did not intend for it to protect a
woman’s decision to have an abortion. Justice Rehnquist further argued that the only right to privacy is that which is
protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures. Finally, he concluded that
because this issue required a careful balance of the interests of the woman against the interests of the state, it was not an
appropriate decision for the Court to make, but instead was a question that should have been left up to state legislatures
to resolve.

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

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

This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo,
the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the
complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and
against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees
and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the
award by a majority vote of three justices as against two, who rendered a separate dissenting
opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband
before they were legally married. Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted by the defendant. After her
marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1953. Less than two years later, she again
became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine
currency. The plaintiff was at this time in the province of Cagayan, campaigning for his
election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06
upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This
we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a
person, does not cover the case of an unborn foetus that is not endowed with personality. Under the
system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en
consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to
the one injured, it is easy to see that if no action for such damages could be instituted on behalf of
the unborn child on account of the injuries it received, no such right of action could derivatively
accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn
child, the same was extinguished by its pre-natal death, since no transmission to anyone can take
place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to
act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Code, because that same article expressly limits such
provisional personality by imposing the condition that the child should be subsequently born alive:
"provided it be born later with the condition specified in the following article". In the present case,
there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery
can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10
ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages
must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of
the deceased, his right to life and physical integrity. Because the parents can not expect either help,
support or services from an unborn child, they would normally be limited to moral damages for the
illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ.
Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any
basis for an award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned
with the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the
second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the
causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the
third abortion, the appellee does not seem to have taken interest in the administrative and criminal
cases against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's
fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that
the medical profession was purged of an unworthy member rather than turn his wife's
indiscretion to personal profit, and with that idea in mind to press either the administrative or
 the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action
for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her husband does not excuse it. But
the immorality or illegality of the act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio Geluz
as the facts may warrant.

G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA
CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.

Torcuato L. Galon for plaintiffs-appellants.

Godardo Jacinto for defendant-appellee.

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

Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge
Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for support and
damages, and another order denying amendment of the same pleading.

The events in the court of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her
complaint it was averred that the parties were neighbors in Dapitan City, and had close and
confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse
with plaintiff several times by force and intimidation, and without her consent; that as a result she
became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop
studying. Hence, she claimed support at P120.00 per month, damages and attorney's fees.

Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did
not allege that the child had been born; and after hearing arguments, the trial judge sustained
defendant's motion and dismissed the complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse,
plaintiff had later given birth to a baby girl; but the court, sustaining defendant's objection, ruled that
no amendment was allowable, since the original complaint averred no cause of action. Wherefore,
the plaintiff appealed directly to this Court.
We find the appealed orders of the court below to be untenable. A conceived child, although as yet
unborn, is given by law a provisional personality of its own for all purposes favorable to it, as
explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a
right to support from its progenitors, particularly of the defendant-appellee (whose paternity is
deemed admitted for the purpose of the motion to dismiss), even if the said child is only "en ventre
de sa mere;" just as a conceived child, even if as yet unborn, may receive donations as prescribed
by Article 742 of the same Code, and its being ignored by the parent in his testament may result in
preterition of a forced heir that annuls the institution of the testamentary heir, even if such child
should be born after the death of the testator Article 854, Civil Code).

ART. 742. Donations made to conceived and unborn children may be accepted by
those persons who would legally represent them if they were already born.

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of 'representation.

It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is
an obligation of parents and illegitimate children "does not contemplate support to children as yet
unborn," violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text
of Article 291. It is true that Article 40 prescribing that "the conceived child shall be considered born
for all purposes that are favorable to it" adds further "provided it be born later with the conditions
specified in the following article" (i.e., that the foetus be alive at the time it is completely delivered
from the mother's womb). This proviso, however, is not a condition precedent to the right of the
conceived child; for if it were, the first part of Article 40 would become entirely useless and
ineffective. Manresa, in his Commentaries (5th Ed.) to the corresponding Article 29 of the Spanish
Civil Code, clearly points this out:

Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el

sentido tecnico que la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30, no
determina el nacimiento de aquellos derechos (que ya existian de antemano), sino
que se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op. cit., page
271)

A second reason for reversing the orders appealed from is that for a married man to force a woman
not his wife to yield to his lust (as averred in the original complaint in this case) constitutes a clear
violation of the rights of his victim that entitles her to claim compensation for the damage caused.
Says Article 21 of the Civil Code of the Philippines:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

The rule of Article 21 is supported by Article 2219 of the same Code:

ART 2219. Moral damages may be recovered in the following and analogous cases:
 (3) Seduction, abduction, rape or other lascivious acts:

xxx xxx xxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....

Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause
of action for damages under the terms of the complaint; and the order dismissing it for failure to state
a cause of action was doubly in error.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to
the court of origin for further proceedings conformable to this decision. Costs against appellee Felix
Icao. So ordered.

G.R. No. L-39110 November 28, 1933

ANTONIA L. DE JESUS, ET AL., plaintiff-appellant,

vs.
CESAR SYQUIA, defendant-appellant.

Jose Sotelo for plaintiffs-appellants.

Vicente J. Francisco for defendant-appellant.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her
own right and by her mother, Pilar Marquez, as next friend and representative of Ismael and Pacita
Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the
defendant, Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named
plaintiff from breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita
as natural children begotten by him with Antonia, and to pay for the maintenance of the three the
amount of five hundred pesos per month, together with costs. Upon hearing the cause, after answer
of the defendant, the trial court erred a decree requiring the defendant to recognize Ismael Loanco
as his natural child and to pay maintenance for him at the rate of fifty pesos per month, with costs,
dismissing the action in other respects. From this judgment both parties appealed, the plaintiffs from
so much of the decision as denied part of the relief sought by them, and the defendant from that
feature of the decision which required him to recognize Ismael Loanco and to pay for his
maintenance.

At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of
twenty-three years, and an unmarried scion of the prominent family in Manila, being possessed of a
considerable property in his own right. His brother-in-law, Vicente Mendoza is the owner of a barber
shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of
June Antonia Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in
this barber shop. Syquia was not long in making her acquaintance and amorous relations resulted,
as a consequence of which Antonia was gotten with child and a baby boy was born on June 17,
1931. The defendant was a constant visitor at the home of Antonia in the early months of her
pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to
the padre who has expected to christen the baby. This note was as follows:

Saturday, 1:30 p. m.
February 14, 1931

Rev. FATHER,

The baby due in June is mine and I should like for my name to be given to it.

CESAR SYQUIA

The occasion for writing this note was that the defendant was on the eve of his departure on a trip to
China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing
a paternal interest in the situation that had developed with her, and cautioning her to keep in good
condition in order that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong, and promising
to return to them soon. The baby arrived at the time expected, and all necessary anticipatory
preparations were made by the defendant. To this he employed his friend Dr. Crescenciano
Talavera to attend at the birth, and made arrangements for the hospitalization of the mother in Saint
Joseph's Hospital of the City of Manila, where she was cared for during confinement.

When Antonio was able to leave the hospital, Syquia took her, with her mother and the baby, to a
house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular
family style, all household expenses, including gas and electric light, being defrayed by Syquia. In
course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a
second pregnancy the defendant decamped, and he is now married to another woman. A point that
should here be noted is that when the time came for christening the child, the defendant, who had
charge of the arrangement for this ceremony, caused the name Ismael Loanco to be given to him,
instead of Cesar Syquia, Jr., as was at first planned.

The first question that is presented in the case is whether the note to the padre, quoted above, in
connection with the letters written by the defendant to the mother during pregnancy, proves an
acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code.
Upon this point we have no hesitancy in holding that the acknowledgment thus shown is sufficient. It
is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal
rights and capable of being dealt with as a living person. The fact that it is yet unborn is no
impediment to the acquisition of rights. The problem here presented of the recognition of unborn
child is really not different from that presented in the ordinary case of the recognition of a child
already born and bearing a specific name. Only the means and resources of identification are
different. Even a bequest to a living child requires oral evidence to connect the particular individual
intended with the name used.

It is contended however, in the present case that the words of description used in the writings before
us are not legally sufficient to indemnify the child now suing as Ismael Loanco. This contention is
not, in our opinion, well founded. The words of recognition contained in the note to the padre are not
capable of two constructions. They refer to a baby then conceived which was expected to be born in
June and which would thereafter be presented for christening. The baby came, and though it was in
the end given the name of Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which
the defendant intended to acknowledge is clear. Any doubt that might arise on this point is removed
by the letters Exhibit F, G, H, and J. In these letters the defendant makes repeated reference
to junior as the baby which Antonia, to whom the letters were addressed, was then carrying in her
womb, and the writer urged Antonia to eat with good appetite in order that junior might be vigorous.
In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged
her to take good care of herself and ofjunior also.

It seems to us that the only legal question that can here arise as to the sufficiency of
acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the
Civil Code must be made in a single document or may be made in more than one document, of
indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that
the recognition can be made out by putting together the admissions of more than one document,
supplementing the admission made in one letter by an admission or admissions made in another. In
the case before us the admission of paternity is contained in the note to the padre and the other
letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus.
There is no requirement in the law that the writing shall be addressed to one, or any particular
individual. It is merely required that the writing shall be indubitable.

The second question that presents itself in this case is whether the trial court erred in holding that
Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by
the conduct of the father himself, and that as a consequence, the defendant in this case should be
compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The
facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this
point, and we may add here that our conclusion upon the first branch of the case that the defendant
had acknowledged this child in writings above referred to must be taken in connection with the facts
found by the court upon the second point. It is undeniable that from the birth of this child the
defendant supplied a home for it and the mother, in which they lived together with the defendant.
This situation continued for about a year, and until Antonia became enciente a second time, when
the idea entered the defendant's head of abandoning her. The law fixes no period during which a
child must be in the continuous possession of the status of a natural child; and the period in this
case was long enough to evince the father's resolution to concede the status. The circumstance that
he abandoned the mother and child shortly before this action was started is unimportant. The word
"continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of
status shall continue forever, but only that it shall not be of an intermittent character while it
continues.

What has been said disposes of the principal feature of the defendant's appeal. With respect to the
appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages
to the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not
satisfactorily proved, and we may add that the action for breach of promise to marry has no standing
in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the
faith of such promise. This case exhibits none of the features necessary to maintain such an action.
Furthermore, there is no proof upon which a judgment could be based requiring the defendant to
recognize the second baby, Pacita Loanco.

Finally, we see no necessity or propriety in modifying the judgment as to the amount of the
maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point
out that, as conditions change, the Court of First Instance will have jurisdiction to modify the order as
to the amount of the pension as circumstances will require.

The judgment appealed from is in all respects affirmed, without costs. So ordered.

Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.

Separate Opinions

VILLA-REAL, J., dissenting:

The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia
has expressly acknowledged his paternity of the child Ismael Loanco in an indubitable writing of his;
and secondly, that said child has enjoyed the uninterrupted possession of the status of a natural son
of said defendant-appellant Cesar Syquia, justified by his acts, as required by article 135 of the Civil
Code.

The first conclusion is drawn from Exhibits C, F, G, H, and J.

Exhibit C, which is in the handwriting of any signed by the defendant-appellant Cesar Syquia, reads
as follows:

Sabado, 1.30 p. m. — 14 febrero, 1931

Rev. PADRE:

La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura.

(Fdo.) CESAR SYQUIA

Exhibit F, G, H, and j, which are letters written by the said defendant-appellant Cesar Syquia to
plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the following expressions:

Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo
manches. A cuerdate muy bien Toni que es por ti y por junior volvere alli pronto. ..."

Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..."

Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. ... ."

Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."

Article 135, number 1, provides as follows:

ART. 135. The father may be compelled to acknowledge his natural child in the following
cases:

1. When an indisputable paper written by him, expressly acknowledging his paternity, is in

existence.

Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article, says:
 Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible
admitir por otro medio la prueba de la paternidad natural. Entendemos que no, porquel el
articulo es terminante y la intencion de la ley mas terminante aun. Se establecio en la base
5.a que "no se admitira investigacion de la paternidad sino en los casos de delito, o cuando exista escrito del padre en el que
conste su voluntad indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o cuando medie posesion
de estado", y esto mismo es lo que se ordena en el presente articulo.

No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo

natural, aunque solo se limite a pedir alimentos, si no se funda en el reconocimiento expreso
del padre hecho por escrito, en la posesion constante de estado de hijo natural o en
sentencia firme recaida en causa por de delito violacin, estupro o rapto. El escrito y la
sentencia habran de acompañarse a la demandada, y no puede admitirse otra prueba que la
conducente a justificar que el escrito es indubitadamente del padre que en el reconozca su
paternidad, o la relativa a los actos directos del mismo padre o de su familia, que
demuestren la posesion continua de dicho estado. Para la prueba de estos dos hechos
podran utilizarse todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo el
juez rechazar la que por cualquier otro concepto se dirija a la investigacion de la paternidad.

xxx xxx xxx

En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta
hacerlo por incidencia; es indespensable que se consigne en el escrito la voluntad
indubitada, clara y terminante del padre, de reconocer por suyo al hijo, deliberadamente
expresada con este fin, como se ordena an la base 5.a antes citada, de las aprobadas por la Ley de 11 de
mayo de 1888; de suerte que el escrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener por
objecto el reconocimiento deliberado y expreso del hijo natural. No llena, pues, ese objecto la manifestacion que incidentalmente
haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el titulo y tratamiento
de hijo en cartas familiares. Sin embrago, en cada caso decidiran los un modo suficientemente expresivo la paternidad, servira de
base para acreditar, en union con otros datos, la posesion contante del estado del hijo a los efectos de este articulo, y con arreglo
a su numero 2.º

Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs.
Municipality of Panay, 42 Phil., 643; Donado vs. Menendez Donado, 55 Phil., 861). The only
exceptions to this rule are those established in article 135 of the Civil Code quoted above, the first of
which is that the father may be compelled to acknowledge his paternity, "When an indubitable writing
of his exists in which he expressly acknowledge his paternity." The writing that is required by said
provision must be complete in itself and by itself, and must contain all the statements that are
necessary to constitute a full and clear acknowledgment by a father of his paternity of a child, in
order that it may serve as a basis for compelling him to acknowledge said child should be afterwards
deny his paternity. If several writings put together, each not being complete in itself, should be
necessary in order to obtain a full and complete expression of acknowledgment by a father of his
paternity of a child, the general prohibition to investigate paternity would be violated.

By the mere reading of all said letters, the one addressed to a priest and the others to the herein
plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is the "creature that is
coming on June", which the defendant- appellant, Cesar Syquia, says in the said letter addressed to
the priest is his, nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good
care of, as there is nothing in anyone of said letters from which it may be inferred that Antonia L. de
Jesus was enciente at the time, that the "junior" was the being she was carrying in her womb, and
that it was the "creature that is coming in June." To connect all these facts it was necessary to prove
that Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result of such relations
the woman became pregnant, and that she gave birth to a boy in June 1931. All this certainly
constitutes an investigation of the paternity of Cesar Syquia of said child outside of the documents,
which is prohibited by law.
Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient to
constitute a "indubitable writing of Cesar Syquia, in which he expressly acknowledges his paternity
of the child Ismael Loanco," as required by number 1 of article 135 of the Civil Code.

As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code
provides:

ART. 135. The father may be compelled to acknowledge his natural child in the following
cases:

xxx xxx xxx

2. When the child has been in the uninterrupted possession of the status of a natural child of
the defendant father, justified by the conduct of the father himself or that of his family.

The majority decision bases its connection on the second point on Exhibits C, F, G, H, and J and the
following facts, as found by the lower court in its decision:

Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar
Syquia llamo a su comprovinciano Dr. Crescenciano Talavera, medico que entonces ejercia
su profesion en la Ciudad de Manila, para que asistiera a aquella en su parto y a ese efecto
llevo a la demandante Antonia L. de Jesus acompañado del Dr. Talavera al Hospital San
Jose, de esta Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr.
Talavera, que firmo el certificado de necimiento Exhibit E.

Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con
este y con la demandante Antonio L. de Jesus en la casa No. 551 de la Calle Camarines,
Manila, entregando a dicha demandante el dinero para los gastos de casa y el pago del
consumo de gas y luz electrica, habiendo firmado el contrato para el suministro del fluido
electrico en dicha casa.

Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing that Ismael Loanco
has enjoyed the continuous possession of the status of a natural child, because being of prior date
to the birth of said child they can not be considered as direct acts of Cesar Syquia showing
possession of the status of natural child, as no human being can enjoy such possession until he be
born with legal capacity for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738; Granados vs.
Leynes, G.R. No. 31224, promulgated September 9, 1929, not reported).

It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael
when it was baptized, so that the name of its mother, Loanco, had to be given to it.

The facts which were found by the court below to have been proved by the testimony of the
witnesses during the trial, are not sufficient to constitute the uninterrupted possession of the status of
Ismael Loanco as natural child of said Cesar Syquia, in the light of the following authorities:

In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said:

. . . Confining ourselves to the acts proved to have been performed by Don Telesforo, we
find that he visited the mother of the plaintiff; that he paid money for her support; that he paid
money for the support of the plaintiff; that he hold one witness that the plaintiff was his son;
that the plaintiff called him "Papa," and that Don Telesforo answered to this designation; that
 when the plaintiff visited Don Telesforo he kissed his hand; that Don Telesforo wrote letters
to him; that he paid his fees for instruction in school, and secured him a position in a
commercial house.

xxx xxx xxx

All these facts taken together are not sufficient to show that plaintiff possesses continuously
the status of a natural child. They may have a tendency to show that Don Telesforo was the
father of the child, but that it is not sufficient. It is not sufficient that the father recognize the
child as his. By the express terms of article 135 that recognition must appear either in writing,
made by the father, or it must appear in acts which show that the son has possessed
continuously the status of a natural child. No recognition by the father of the child which
comes short of the requirements of these two paragraphs is sufficient. It must appear that it
was the intention of the father to recognize the child as to give him that status, and that the
acts performed by him were done with that intention.

Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of
Spain says:

En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion de estado de

hijo natural se requiere que los actos sean de tal naturaleza que revelen, a la vez que el
convencimiento de la paternidad, la voluntad ostensible de tener y tratar al hijo como tal en
las relaciones sociales y de la vida, y esto no accidentalmente, sino continuedamente,
porque en tal supuesto los actos tiene el mismo valor que el reconocimiento expreso. lawphil.net

En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el

hecho de que dos nodrizas criaron a otros tantos niños, sufragando el gasto el demandado,
quien ademas iba a casa de la demandante, los besada, los llamaba hijos y encargaba para
los mismos el mayor cuidado; el de que subvenia a las necesidades de la madre y de los
seis hijos que la nacieron, el primero de los cuales se llamaba como el padre; y el de que los
porteros de la casa donde vivio la actora sabian que el finado visitaba a esta, se lamentaba
de la mucha familia que tenia y era tenido en el concepto publico como padre de los
menores, no son suficientes para fundar la declaracion de paternidad, pues no es legal
confundir actos que puedan revelar mas o menos la presuncion o convencimiento en que
una persona este de su paternidad con relacion a hijos naturales, con los que demuestren
su proposito de poner a estos hijos en la posesion de tal estado.

It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant
Cesar Syquia cannot be compelled to acknowledge the child Ismael Loanco as his natural son
because there exists not an indubitable writing of his in which he expressly acknowledges his
paternity of said child, and because the said child has not enjoyed the uninterrupted possession of
the status of a natural child of the said
defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of
the Civil Code.

The decision appealed from should, therefore, be reversed and the complaint dismissed.

G.R. No. L-770 April 27, 1948

ANGEL T. LIMJOCO, petitioner,

vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.
Bienvenido A. Tan for respondent.

HILADO, J.:

Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel
Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of
public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said
commission held that the evidence therein showed that the public interest and convenience will be
promoted in a proper and suitable manner "by authorizing the operation and maintenance of another
ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant
Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is
financially capable of maintaining the proposed service". The commission, therefore, overruled the
opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth
Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the
deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial
Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an
ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San
Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the
Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in
detail (petitioner's brief, pp. 33-34).

Petitioner makes four assignments of error in his brief as follows:

1. The decision of the Public Service Commission is not in accordance with law.

2. The decision of the Public Service Commission is not reasonably supported by evidence.

3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage
Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the
increased demand.

4. The decision of the Public Service Commission is an unwarranted departure from its
announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2,
petitioner's brief.)

In his argument petitioner contends that it was error on the part of the commission to allow the
substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party
applicant in the case then pending before the commission, and in subsequently granting to said
estate the certificate applied for, which is said to be in contravention of law.

If Pedro O. Fragante had not died, there can be no question that he would have had the right to
prosecute his application before the commission to its final conclusion. No one would have denied
him that right. As declared by the commission in its decision, he had invested in the ice plant in
question P 35,000, and from what the commission said regarding his other properties and business,
he would certainly have been financially able to maintain and operate said plant had he not died. His
transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and
continued to be such till his demise. The commission declared in its decision, in view of the evidence
before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid
right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature
did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a
right was property despite the possibility that in the end the commission might have denied
application, although under the facts of the case, the commission granted the application in view of
the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum
of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule,
should descend to his estate as an asset". Such certificate would certainly be property, and the right
to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in
his lifetime, and survived to his estate and judicial administrator after his death.

If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life
of the option he died, if the option had been given him in the ordinary course of business and not out
of special consideration for his person, there would be no doubt that said option and the right to
exercise it would have survived to his estate and legal representatives. In such a case there would
also be the possibility of failure to acquire the property should he or his estate or legal representative
fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted
right to apply for and acquire the desired certificate of public convenience — the evidence
established that the public needed the ice plant — was under the law conditioned only upon the
requisite citizenship and economic ability to maintain and operate the service. Of course, such right
to acquire or obtain such certificate of public convenience was subject to failure to secure its
objective through nonfulfillment of the legal conditions, but the situation here is no different from the
legal standpoint from that of the option in the illustration just given.

Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among
other cases, for the protection of the property or rights of the deceased which survive, and it says
that such actions may be brought or defended "in the right of the deceased".

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the
making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall
come to his possession or knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief
Justice of this Court draws the following conclusion from the decisions cited by him:

Therefore, unless otherwise expressly provided by law, any action affecting the property
or rights (emphasis supplied) of a deceased person which may be brought by or against him
if he were alive, may likewise be instituted and prosecuted by or against the administrator,
unless the action is for recovery of money, debt or interest thereon, or unless, by its very
nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the
Public Service Commission is not an "action". But the foregoing provisions and citations go to prove
that the decedent's rights which by their nature are not extinguished by death go to make up a part
and parcel of the assets of his estate which, being placed under the control and management of the
executor or administrator, can not be exercised but by him in representation of the estate for the
benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of an unfinished proceeding upon an application for a
certificate of public convenience of the deceased before the Public Service Commission, it is but
logical that the legal representative be empowered and entitled in behalf of the estate to make the
right effective in that proceeding.

Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code,
respectively, consider as immovable and movable things rights which are not material. The same
eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been
deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are
also property for juridical purposes.

Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among
other things, "an option", and "the certificate of the railroad commission permitting the operation of a
bus line", and on page 748 of the same volume we read:

However, these terms (real property, as estate or interest) have also been declared to
include every species of title, inchoate or complete, and embrace rights which lie in contract,
whether executory or executed. (Emphasis supplied.)

Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a
"person" within the meaning of the Public Service Act.

Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of
the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the
death of the man whose name purports to be signed to the instrument may be prosecuted as
with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E.
763, 57 Am. Rep. 77.

The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed
after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that
the information did not aver that the forgery was committed with the intent to defraud any person.
The Court, per Elliott, J., disposed of this objection as follows:

. . . The reason advanced in support of this proposition is that the law does not regard the
estate of a decedent as a person. This intention (contention) cannot prevail. The estate of
the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its
legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb.
Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port.
(Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A
natural person is a human being. Artificial persons include (1) a collection or succession of
natural persons forming a corporation; (2) a collection of property to which the law attributes
the capacity of having rights and duties. The latter class of artificial persons is recognized
only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased
person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness
of the definition given by the authors from whom we have quoted, for they declare that it is
sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the
estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept
this definition as correct, there would be a failure of justice in cases where, as here, the
forgery is committed after the death of a person whose name is forged; and this is a result to
be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the estate of a decedent should be
regarded as an artificial person. It is the creation of law for the purpose of enabling a
disposition of the assets to be properly made, and, although natural persons as heirs,
devises, or creditors, have an interest in the property, the artificial creature is a distinct legal
entity. The interest which natural persons have in it is not complete until there has been a
due administration; and one who forges the name of the decedent to an instrument
purporting to be a promissory note must be regarded as having intended to defraud the
estate of the decedent, and not the natural persons having diverse interests in it, since ha
 cannot be presumed to have known who those persons were, or what was the nature of their
respective interest. The fraudulent intent is against the artificial person, — the estate — and
not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E.
914-915.)

In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is
considered a "person", for quashing of the proceedings for no other reason than his death would
entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not
counting the expenses and disbursements which the proceeding can be presumed to have
occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this
jurisdiction there are ample precedents to show that the estate of a deceased person is also
considered as having legal personality independent of their heirs. Among the most recent cases may
be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal
plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said
estate along with the other plaintiffs in these words:

. . . the judgment appealed from must be affirmed so far as it holds that defendants
Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .

Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the
heirs of a deceased person were considered in contemplation of law as the continuation of his
personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the
rights and obligations of the decedent by the mere fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure,
article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13,
22. In that case, as well as in many others decided by this Court after the innovations introduced by
the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant
doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of
the heirs directly, that becomes vested and charged with his rights and obligations which survive
after his demise.

The heirs were formerly considered as the continuation of the decedent's personality simply by legal
fiction, for they might not have been flesh and blood — the reason was one in the nature of a legal
exigency derived from the principle that the heirs succeeded to the rights and obligations of the
decedent. Under the present legal system, such rights and obligations as survive after death have to
be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not
indulged, there would be no juridical basis for the estate, represented by the executor or
administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason
and purpose for indulging the fiction is identical and the same in both cases. This is why according to
the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954,
among the artificial persons recognized by law figures "a collection of property to which the law
attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or
deceased person.

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be
considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act,
as amended, particularly the proviso thereof expressly and categorically limiting the power of the
commission to issue certificates of public convenience or certificates of public convenience and
necessity "only to citizens of the Philippines or of the United States or to corporations,
copartnerships, associations, or joint-stock companies constituted and organized under the laws of
the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such
entities must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for the legal fiction by
which, for certain purposes, the estate of the deceased person is considered a "person" is the
avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and
fulfilling such legal obligations of the decedent as survived after his death unless the fiction is
indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of
the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said
State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial

person. it is the creation of law for the purpose of enabling a disposition of the assets to be
properly made . . . .

Within the framework and principles of the constitution itself, to cite just one example, under the bill
of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to
natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial
or juridical persons, for otherwise these latter would be without the constitutional guarantee against
being deprived of property without due process of law, or the immunity from unreasonable searches
and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no
less than natural, persons in these constitutional immunities and in others of similar nature. Among
these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the
framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or
juridical person for the purposes of the settlement and distribution of his estate which, of course,
include the exercise during the judicial administration thereof of those rights and the fulfillment of
those obligations of his which survived after his death. One of those rights was the one involved in
his pending application before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an injustice would ensue from
the opposite course.

How about the point of citizenship? If by legal fiction his personality is considered extended so that
any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be
exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason
for denying the application of the same fiction to his citizenship, and for not considering it as likewise
extended for the purposes of the aforesaid unfinished proceeding before the Public Service
Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of
the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the
legal sense, any more than he could have done if Fragrante had lived longer and obtained the
desired certificate. The fiction of such extension of his citizenship is grounded upon the same
principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction
is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by
reason of his death to the loss of the investment amounting to P35,000, which he has already made
in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.

We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its
provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for
reasons already stated our law indulges the fiction of extension of personality, if for such reasons the
estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find
no justification for refusing to declare a like fiction as to the extension of his citizenship for the
purposes of this proceeding.

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of
record, he would have obtained from the commission the certificate for which he was applying. The
situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen.
And its economic ability to appropriately and adequately operate and maintain the service of an ice
plant was the same that it received from the decedent himself. In the absence of a contrary showing,
which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not,
there is the simple expedient of revoking the certificate or enjoining them from inheriting it.

Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572
of the Public Service Commission to its final conclusion, both the personality and citizenship of
Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service
Act, as amended, in harmony with the constitution: it is so adjudged and decreed.

Decision affirmed, without costs. So ordered.

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions

PERFECTO, J., dissenting:

Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public
convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8
of Article XIV of the Constitution which provides

No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations or other entities
organized under the laws of the Philippines, sixty per centum of the capital of which is owned
by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive in
character or for a longer period than fifty years. No franchise granted to any individual, firm
or corporation, except under the condition that it shall be subject to amendment, alteration, or
repeal by Congress when the public interest so requires.

The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship
requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O.
Fragrante fulfill the citizenship requirement of the law.

The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device
by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs.
They inherit and replace the deceased at the very moment of his death. As there are procedural
requisites for their identification and determination that need time for their compliance, a legal fiction
has been devised to represent them. That legal fiction is the estate, a liquid condition in process of
solidification.

The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact,
intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to
the citizenship of the heirs of Fragrante.
There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they
are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they
are not, it should be reversed.

Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship
constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien.

We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the
Commission upon evidence that the party should be present. It should also determine the dummy
question raised by the petitioner.

We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946,
be set aside and that the Commission be instructed to receive evidence of the above factual
questions and render a new decision accordingly.

G.R. No. L-27956 April 30, 1976

DIONISIO DUMLAO, in his own behalf and in his capacity as Administrator of the Testate
Estate of the late Pedro Oria; FAUSTA DUMLAO, AMADO DUMLAO, and BENJAMIN
DUMLAO, plaintiffs-appellants,
vs.
QUALITY PLASTIC PRODUCTS, INC., defendant-appellee.

Castillo & Castillo for appellants.

Eugenio T. Estavillo for appellee.

AQUINO, J.:p

On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case No.
T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria, Santiago Laurencio,
Marcelino Sumalbag and Juana Darang to pay solidarity Quality Plastic Products, Inc. the sum of
P3,667.03 plus the legal rate of interest from November, 1958. The lower court directed that in case
the defendants failed to pay the said amount before its decision became final, then Quality Plastic
Products, Inc. "is hereby authorized to foreclose the bond, Exhibit A, in accordance with law, for the
satisfaction of the judgment". (Under that bond the four sureties bound themselves to answer
solidarity for the obligations of the principal, Vicente Soliven and certain real properties of the
sureties were "given as security for" their undertaking).

Upon defendants' failure to pay the amount of the judgment and after the decision had become final,
the lower court, on motion of Quality Plastic Products, Inc., ordered the "foreclosure" of the surety
bond and the sale at public auction of the land of Pedro Oria which he had given as security under
the bond. Oria's land, which was covered by Original Certificate of Title No. 28732 and has an area
of nine and six-tenths hectares, was levied upon and sold by the sheriff at public auction on
September 24, 1962. The sale was confirmed by the lower court in its order of November 20, 1962.

It turned out that Oria died on April 23, 1959 or long before June 13, 1960 when the action was filed.
Oria's death was not known to Quality Plastic Products, Inc. Nor were the representatives of Quality
Plastic Products, Inc. aware that in the same Tayug court Special Proceeding No. T-212, Testate
Estate of the deceased Pedro Oria, was pending.

The summons and copies of the complaint for the five defendants in Civil Case No.
T-662 had been personally served on June 24, 1960 by a deputy sheriff on Soliven, the principal in
the bond, who acknowledged such service by signing on the back of the original summons in his
own behalf and again signing for his co-defendants.

On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all
testamentary heirs in Oria's duly probated will, sued Quality Plastic Products, Inc., also in the Tayug
court for the annulment of the judgment against Oria and the execution against his land. (Dionisio
Dumlao also sued in his capacity as administrator of Oria's testate estate).

The ground for annulment was lack of jurisdiction over the person of the deceased Oria (Civil Case
No. T- 873). It was only when Quality Plastic Products, Inc. received the summons in Civil Case No.
T-873 that it learned that Oria was already dead at the time the prior case, Civil Case No. T-662,
was filed.

Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware of the suit against
Soliven and his sureties and that the said heirs were estopped to question the court's jurisdiction
over Oria.

After hearing the lower court held that it acquired jurisdiction over Soliven and the other defendants
in Civil Case No. T-662 by reason of their voluntary appearance. It reasoned out that Soliven acted
in bad faith because he did not apprise the court that Oria was dead. It specifically ruled that "it had
acquired jurisdiction over the person" of Oria and that the judgment was valid as to him. From that
decision the plaintiffs appealed.

The four assignments of error of appellants Dumlao may be boiled down to the issue as to the
validity of the lower court's judgment against the deceased Pedro Oria who, being already in the
other world, was never served with summons.

There is no difficulty in resolving that issue. Since no jurisdiction was acquired over Oria, the
judgment against him is a patent nullity (Ang Lam vs. Rosillosa and Santiago, 86 Phil. 447; Asuncion
vs. Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil. 4).

As far as Oria was concerned, the lower court's judgment against him in Civil Case No. T-662 is void
for lack of jurisdiction over his person. He was not, and he could not have been, validly served with
summons. He had no more civil personality. His juridical capacity, which is the fitness to be the
subject of legal relations, was lost through death. (Arts. 37 and 42, Civil Code).

The lower court erred in ruling that since Soliven's counsel also appeared as counsel for Oria, there
was a voluntary appearance which enabled the court to acquire jurisdiction over Oria, as
contemplated in section 23, Rule 14 of the Revised Rules of Court. Soliven's counsel could not have
validly appeared for a dead co-defendant. Estoppel has no application to this case.

But from the fact that appellants Dumlao had to sue Quality Plastic Products, Inc. in order to annul
the judgment against Oria, it does not follow that they are entitled to claim attorney's fees against
that corporation. The parties herein agreed in their stipulation of facts that Quality Plastic Products,
Inc. was unaware of Oria's death. Appellants Dumlao in effect conceded that the appellee acted in
good faith in joining Oria as a co-defendant.
WHEREFORE, the lower court's decision is reversed and set aside. Its judgment in Civil Case No. T-
662 against Pedro Oria is declared void for lack of jurisdiction. The execution sale of Oria's land
covered by OCT No. 28732 is also void. No costs.

SO ORDERED.

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de
Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial
Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-
55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA
VARGAS-BENTULAN, respondents.

G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de
Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD
VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and
NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner.

Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:

On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or
injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No.
88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and implementing the writ and orders of the
respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11
October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order.

The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood
brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27 September 1988,
a petition for habeas corpusbefore the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City)
alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and confined by
herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape,
Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was
filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas
Eugenio.
The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but
the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died
on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the subject
of habeas corpus proceedings; besides, according to petitioner, he had already obtained a burial
permit from the Undersecretary of the Department of Health, authorizing the burial at the palace
quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious
sect, of which he (petitioner) is the Supreme President and Founder.

Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his
residence on 28 August 1988. As her common law husband, petitioner claimed legal custody of her
body. These reasons were incorporated in an explanation filed before the respondent court. Two (2)
orders dated 29 and 30 September 1988 were then issued by respondent court, directing delivery of
the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy.

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the
petition therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b)
of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court.1 A special proceeding for habeas
corpus, petitioner argued, is not applicable to a dead person but extends only to all cases of illegal
confinement or detention of a live person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were granted
leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28
September 1988 (or after the filing of the habeas corpus petition), private respondents (Vargases')
alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana was wrongfully
interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the
Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the
dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was
finally submitted for resolution on 21 October 1988.

In the absence of a restraining order from this Court, proceedings continued before the respondent
court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de
Oro City, viewed by the presiding Judge of respondent court, and examined by a duly authorized
government pathologist. 4

Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17
November 1988, that:

It should be noted from the original petition, to the first amended petition, up to the
second amended petition that the ultimate facts show that if the person of Vitaliana
Vargas turns out to be dead then this Court is being prayed to declare the petitioners
as the persons entitled to the custody, interment and/or burial of the body of said
deceased. The Court, considering the circumstance that Vitaliana Vargas was
already dead on August 28, 1988 but only revealed to the Court on September 29,
1988 by respondent's counsel, did not lose jurisdiction over the nature and subject
matter of this case because it may entertain this case thru the allegations in the body
of the petition on the determination as to who is entitled to the custody of the dead
body of the late Vitaliana Vargas as well as the burial or interment thereof, for the
reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which
reads as follows:

Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive
original jurisdiction:
 (1) In all civil actions in which the subject of the litigation is incapable
of pecuniary estimation;

xxx xxx xxx

(5) In all actions involving the contract of marriage and marital

relations;

(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions:

xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction to try
this case. The authority to try the issue of custody and burial of a dead person is
within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129 and
because of the allegations of the pleadings in this case, which are enumerated in
Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129.

Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on
17 January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over
the case by treating it as an action for custody of a dead body, without the petitioners having to file a
separate civil action for such relief, and without the Court first dismissing the original petition
for habeas corpus.

Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of
1981), 7 Sections 5 and 6 of Rule 135 of the Rules of Court8 Articles 305 and 308 in relation to Article
294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the decision stated:

. . . . By a mere reading of the petition the court observed that the allegations in the
original petition as well as in the two amended petitions show that Vitaliana Vargas
has been restrained of her liberty and if she were dead then relief was prayed for the
custody and burial of said dead person. The amendments to the petition were but
elaborations but the ultimate facts remained the same, hence, this court strongly
finds that this court has ample jurisdiction to entertain and sit on this case as an
action for custody and burial of the dead body because the body of the petition
controls and is binding and since this case was raffled to this court to the exclusion of
all other courts, it is the primary duty of this court to decide and dispose of this case. .
. . . 10

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody
over the dead body, (for purposes of burial thereof). The order of preference to give support under
Art. 294 was used as the basis of the award. Since there was no surviving spouse, ascendants or
descendants, the brothers and sisters were preferred over petitioner who was merely a common law
spouse, the latter being himself legally married to another woman. 11

On 23 January 1989, a new petition for review with application for a temporary restraining order
and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure
questions of law, basically Identical to those raised in the earlier petition (G.R. No. 85140); hence,
the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the
issuance of an injunction to maintain status quo pending appeal, which this Court denied in a
resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently
establish a clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a
decent burial." The petitions were then submitted for decision without further pleadings.

Between the two (2) consolidated petitions, the following issues are raised:

1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to
recover custody of the dead body of a 25 year old female, single, whose nearest
surviving claimants are full blood brothers and sisters and a common law husband.

2. jurisdiction of the RTC over such proceedings and/or its authority to treat the
action as one for custody/possession/authority to bury the deceased/recovery of the
dead.

3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the
new Family Code) which states:

Art. 294. The claim for support, when proper and two or more
persons are obliged to give it, shall be made in the following order:

(1) From the spouse;

xxx xxx xxx

Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional
Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas
corpus may be granted by a Court of First Instance (now Regional Trial Court). It is an elementary
rule of procedure that what controls is not the caption of the complaint or petition; but the allegations
therein determine the nature of the action, and even without the prayer for a specific remedy, proper
relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence
introduced so warrant. 13

When the petition for habeas corpus was filed before the court a quo, it was not certain whether
Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of
course or as a mere perfimetory operation on the filing of the petition. Judicial discretion is exercised
in its issuance, and such facts must be made to appear to the judge to whom the petition is
presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may
refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the
petition complies with the legal requirements and its averments make a prima facie case for relief.
However, a judge who is asked to issue a writ of habeas corpus need not be very critical in looking
into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make
full inquiry into the cause of commitment or detention will enable him to correct any errors or defects
in the petition. 15

In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas
corpus petition filed by a brother to obtain custody of a minor sister, stating:

All these circumstances notwithstanding, we believe that the case should not have
been dismissed. The court below should not have overlooked that by dismissing the
petition, it was virtually sanctioning the continuance of an adulterous and scandalous
relation between the minor and her married employer, respondent Benildo Nunez
against all principles of law and morality. It is no excuse that the minor has
 expressed preference for remaining with said respondent, because the minor may
not chose to continue an illicit relation that morals and law repudiate.

xxx xxx xxx

The minor's welfare being the paramount consideration, the court below should not
allow the technicality, that Teofilo Macazo was not originally made a party, to stand in
the way of its giving the child full protection. Even in a habeas corpus proceeding the
court had power to award temporary custody to the petitioner herein, or some other
suitable person, after summoning and hearing all parties concerned. What matters is
that the immoral situation disclosed by the records be not allowed to continue. 17

After the fact of Vitaliana's death was made known to the petitioners in the habeas
corpus proceedings, amendment of the petition for habeas corpus, not dismissal, was proper to
avoid multiplicity of suits. Amendments to pleadings are generally favored and should be liberally
allowed in furtherance of justice in order that every case may so far as possible be determined on its
real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary
expense, unless there are circumstances such as inexcusable delay or the taking of the adverse
party by surprise or the like, which justify a refusal of permission to amend. 18 As correctly alleged by
respondents, the writ of habeas corpus as a remedy became moot and academic due to the death of
the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo
had to resolve.

Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse
used therein not being preceded by any qualification; hence, in the absence of such qualification, he
is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise.
Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally
married who cohabit for many years as husband and wife, who represent themselves to the public
as husband and wife, and who are reputed to be husband and wife in the community where they live
may be considered legally mauled in common law jurisdictions but not in the Philippines. 19

While it is true that our laws do not just brush aside the fact that such relationships are present in our
society, and that they produce a community of properties and interests which is governed by
law, 20 authority exists in case law to the effect that such form of co-ownership requires that the man
and woman living together must not in any way be incapacitated to contract marriage. 21 In any case,
herein petitioner has a subsisting marriage with another woman, a legal impediment which
disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru
Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children
During Liquidation of Inventoried Property) stated: "Be it noted however that with respect to 'spouse',
the same must be the legitimate 'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces
common law relation for purposes of exemption from criminal liability in cases of theft, swindling and
malicious mischief committed or caused mutually by spouses. The Penal Code article, it is said,
makes no distinction between a couple whose cohabitation is sanctioned by a sacrament or legal tie
and another who are husband and wife de facto.23 But this view cannot even apply to the facts of the
case at bar. We hold that the provisions of the Civil Code, unless expressly providing to the contrary
as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-
a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to
marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters
(the Vargases). Section 1103 of the Revised Administrative Code provides:

Sec. 1103. Persons charged with duty of burial. — The immediate duty of burying the
body of a deceased person, regardless of the ultimate liability for the expense
thereof, shall devolve upon the persons hereinbelow specified:

xxx xxx xxx

(b) If the deceased was an unmarried man or woman, or a child, and

left any kin, the duty of burial shall devolve upon the nearest of kin of
the deceased, if they be adults and within the Philippines and in
possession of sufficient means to defray the necessary expenses.

WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED.
No Costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento,
Cortes, Medialdea and Regalado, JJ., concur.

Gancayco and Grino-Aquino, JJ., are on leave.

G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner,

vs.
ANTONIO C. NAVARRO, respondent.

Agrava, Peralta & Agrava for petitioner.

Leonardo Abola for respondent.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary
settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro,
Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo
handed down a single decision which was appealed to the Court of Appeals, whose decision,
modifying that the Court of First Instance, in turn was elevated to the Supreme Court for review.

The main question represented in the first two courts related to the sequence of the deaths of
Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians
by Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to
have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd.
Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of
Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and
Joaquin Navarro, Jr., the latter was declared to have survived his mother.
It is this modification of the lower court's finding which is now being contested by the petitioner. The
importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or
vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the
present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of
the deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first
marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals
as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin
Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and
Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in
the ground floor of the building known as the German Club, at the corner of San Marcelino and San
Luis Streets of this City. During their stay, the building was packed with refugees, shells were
exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at
the people inside the building, especially those who were trying to escape. The three daughters were
hit and fell of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to
abandon the premises to seek a safer heaven. They could not convince Angela Joaquin who refused
to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife,
Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning
edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and
immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the
bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside,
presumably including Angela Joaquin.

"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid
shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to
leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in
San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing
Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about
67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her
brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and
25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who
miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as between
the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is
uncertain and insufficient" and the statutory presumption must be applied. The appellate Court's
reasoning for its conclusion is thus stated:

"It does not require argument to show that survivorship cannot be established by proof of the death
of only one of the parties; but that there must be adequate proof that one was alive when the other
had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect
that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company
of his father and the witness, and that the burning edified entirely collapsed minutes after the
shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we
may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the
instant his son turned his back to her, to dash out to the Club, until he died. All we can glean from
the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German
Club; but she could have died almost immediately after, from a variety of causes. She might have
been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice,
overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for
certain. No evidence is available on the point. All we can decide is that no one saw her alive after
her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone
cannot support a finding that she died latter than her son, and we are thus compelled to fall back
upon the statutory presumption. In deed, it could be said that the purpose of the presumption of
survivorship would be precisely to afford a solution to uncertainties like these. Hence the son
Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who
was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether
she and her deceased children perished in the same calamity. There being no evidence to the
contrary, the only guide is the occasion of the deaths, which is identical for all of them; that battle for
the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same
battle are to be regarded as perishing in the same calamity, could not overlooked that a variety of
cause of death can ( and usually do) operate in the source of combats. During the same battle,
some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards
episodic details, and treats the battle as an overall cause of death in applying the presumption of
survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family
met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the
mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no
doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now
section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889,
now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on
the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela
Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time.

The point is not of much if any relevancy and will be left open for the consideration when obsolute
necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions
is applicable for the reasons to be presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and it
is not (1) shown who died first, and there are no (2) particular circumstances from when it
can be inferred, the survivorship is presumed from the probabilities resulting from the
strength and ages of the sexes, according to the following rules:

xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who
would inherent one from the other, the persons who alleges the prior death of either must
prove the allegation; in the absence of proof the presumption shall be that they died at the
same time, and no transmission of rights from one to the other shall take place.
Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are
not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, "the
situation which it present is one in which the facts are not only unknown but unknowable. By
hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is assumed that no
evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the
law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence,
1940 ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect
to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec.
1936 of the California Code of Civil Procedure," the Supreme Court of California said:

When the statue speaks of "particular circumstances from which it can be inferred" that one
died before the other it means that there are circumstances from which the fact of death by
one before the other may be inferred as a relation conclusion from the facts proven. The
statue does not mean circumstances which would shown, or which would tend to show,
probably that one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96
Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship
contrary to the statutory presumption, the circumstances by which it is sought to prove the
survivorship must be such as are competent and sufficient when tested by the general rules
of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise,
speculation, or conjecture. As was said in Grand Lodge vs. Miller, supra, "if the matter is left
to probably, then the statue of the presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision
that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or
inferential. Where there are facts, known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship
between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and
sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to
detail the testimony, which was described by the trial court as "disinterested and trustworthy" and by
the Court of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters away
from the building but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the
shooting of Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could
not say exactly, Occasions like that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible,
but not probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes
after we have dashed out, the German Club, which was burning, collapsed over them,
including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact
that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not
give the same positive evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in
the sense that I did not see her actually die, but when the building collapsed over her I saw
and I am positive and I did not see her come out of that building so I presumed she died
there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr.
Joaquin Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to the
Club and they were shooting people outside, so we thought of running away rather than be
roasted.

xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls,
Pilar, Concepcion, and Natividad, were already wounded? — A. to my knowledge, yes.

Q. They were wounded? — A. Yes, sir.

Q. Were they lying on the ground or not? — A. On the ground near the entrance, because
most of the people who were shot by the Japanese were those who were trying to escape,
and as far as I can remember they were among those killed.

xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left
the place? — A. That is what I think, because those Japanese soldiers were shooting the
people inside especially those trying to escape.

xxx xxx xxx

 Q. And none of them was not except the girls, is that what you mean? A — . There were
many people shot because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain
that? — A. They were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of
survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption
out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and
reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted that
this possibility is entirely speculative and must yield to the more rational deduction from proven facts
that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in
front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated
that distance in five seconds or less, and so died within that interval from the time he dashed out of
the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the
clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard
to have her come along. She could have perished within those five or fewer seconds, as stated, but
the probabilities that she did seem very remote. True, people in the building were also killed but
these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by
Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape.
She even made frantic efforts to dissuade her husband and son from leaving the place and exposing
themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same
time, of a condition of relative safety in the clubhouse at the moment her husband, son, and
daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of
death from staying were not so imminent. And it lends credence to Mr. Lopez' statement that the
collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the
head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of
Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was
"minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that
Mrs. Angela Joaquin was sill alive when her son expired

The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs.
Navarro could have been killed. All these are speculative , and the probabilities, in the light of the
known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her
refusal to follow the only remaining living members of her family, she could not have kept away form
protective walls. Besides, the building had been set on fire trap the refugees inside, and there was
no necessity for the Japanese to was their ammunition except upon those who tried to leave the
premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building
was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not
cause instantaneous death; certainly not within the brief space of five seconds between her son's
departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123
does not require that the inference necessary to exclude the presumption therein provided be
certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are
required to be certain as tested by the rules of evidence. In speaking of inference the rule can not
mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a finding of
fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199
N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is
enough that "the circumstances by which it is sought to prove the survivorship must be such as are
competent and sufficient when tested by the general rules of evidence in civil cases." (In re
Wallace's Estate, supra.) "Juries must often reason," says one author, "according
to probabilities, drawing an inference that the main fact in issue existed from collateral facts not
directly proving, but strongly tending to prove, its existence. The vital question in such cases is the
cogency of the proof afforded by the secondary facts. How likely, according to experience, is the
existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The
same author tells us of a case where "a jury was justified in drawing the inference that the person
who was caught firing a shot at an animal trespassing on his land was the person who fired a shot
about an hour before at the same animal also trespassing." That conclusion was not airtight, but
rational. In fact, the circumstances in the illustration leave greater room for another possibility than
do the facts of the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely
on surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite
theory — that the mother outlived her son — is deduced from established facts which, weighed by
common experience, engender the inference as a very strong probability. Gauged by the doctrine of
preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can
not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous,
where in an action on the game laws it was suggested that the gun with which the defendant fired
was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore
on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which
has been discussed, involves findings of fact which can not be disturbed. The point is not, in our
judgment, well considered. The particular circumstances from which the parties and the Court of
Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness
or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court
has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed.
856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible
witness does not cease to be such because he is not impeached or contradicted. But when the
evidence is purely documentary, the authenticity of which is not questioned and the only issue is the
construction to be placed thereon, or where a case is submitted upon an agreement of facts, or
where all the facts are stated in the judgment and the issue is the correctness of the conclusions
drawn therefrom, the question is one of law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked
is a question of law.

The prohibition against intermeddling with decisions on questions of evidence refers to decisions
supported by substantial evidence. By substantial evidence is meant real evidence or at least
evidence about which reasonable men may disagree. Findings grounded entirely on speculations,
surmises, or conjectures come within the exception to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the
decedents' estates should be made in accordance with the decision of the trial court. This result
precludes the necessity of passing upon the question of "reserva troncal" which was put forward on
the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs.
G.R. No. 15574 September 17, 1919

SMITH, BELL & COMPANY (LTD.), petitioner,

vs.
JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.

Ross and Lawrence for petitioner.

Attorney-General Paredes for respondent.

MALCOLM, J.:

A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of
Customs of the port of Cebu, Philippine Islands, to compel him to issue a certificate of Philippine
registry to the petitioner for its motor vessel Bato. The Attorney-General, acting as counsel for
respondent, demurs to the petition on the general ground that it does not state facts sufficient to
constitute a cause of action. While the facts are thus admitted, and while, moreover, the pertinent
provisions of law are clear and understandable, and interpretative American jurisprudence is found
in abundance, yet the issue submitted is not lightly to be resolved. The question, flatly presented, is,
whether Act. No. 2761 of the Philippine Legislature is valid — or, more directly stated, whether the
Government of the Philippine Islands, through its Legislature, can deny the registry of vessels in its
coastwise trade to corporations having alien stockholders.

FACTS.

Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine
Islands. A majority of its stockholders are British subjects. It is the owner of a motor vessel known as
the Bato built for it in the Philippine Islands in 1916, of more than fifteen tons gross The Bato was
brought to Cebu in the present year for the purpose of transporting plaintiff's merchandise between
ports in the Islands. Application was made at Cebu, the home port of the vessel, to the Collector of
Customs for a certificate of Philippine registry. The Collector refused to issue the certificate, giving
as his reason that all the stockholders of Smith, Bell & Co., Ltd., were not citizens either of the
United States or of the Philippine Islands. The instant action is the result.

LAW.

The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a
portion of section 3 of this Law, and still in force, provides in its section 1:

That until Congress shall have authorized the registry as vessels of the United States of
vessels owned in the Philippine Islands, the Government of the Philippine Islands is hereby
authorized to adopt, from time to time, and enforce regulations governing the transportation
of merchandise and passengers between ports or places in the Philippine Archipelago. (35
Stat. at L., 70; Section 3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.)

The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides
in section 3, (first paragraph, first sentence), 6, 7, 8, 10, and 31, as follows.

SEC. 3. That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the equal
protection of the laws. . . .
 SEC. 6. That the laws now in force in the Philippines shall continue in force and effect,
except as altered, amended, or modified herein, until altered, amended, or repealed by the
legislative authority herein provided or by Act of Congress of the United States.

SEC. 7. That the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment to amend, alter modify, or repeal any law, civil or
criminal, continued in force by this Act as it may from time to time see fit

This power shall specifically extend with the limitation herein provided as to the tariff to all
laws relating to revenue provided as to the tariff to all laws relating to revenue and taxation in
effect in the Philippines.

SEC. 8. That general legislative power, except as otherwise herein provided, is hereby
granted to the Philippine Legislature, authorized by this Act.

SEC. 10. That while this Act provides that the Philippine government shall have the authority
to enact a tariff law the trade relations between the islands and the United States shall
continue to be governed exclusively by laws of the Congress of the United States: Provided,
That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law
until they shall receive the approval of the President of the United States, nor shall any act of
the Philippine Legislature affecting immigration or the currency or coinage laws of the
Philippines become a law until it has been approved by the President of the United
States: Provided further, That the President shall approve or disapprove any act mentioned
in the foregoing proviso within six months from and after its enactment and submission for
his approval, and if not disapproved within such time it shall become a law the same as if it
had been specifically approved.

SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of
the provisions of this Act are hereby continued in force and effect." (39 Stat at L., 546.)

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law
amended section 1172 of the Administrative Code to read as follows:

SEC. 1172. Certificate of Philippine register. — Upon registration of a vessel of domestic

ownership, and of more than fifteen tons gross, a certificate of Philippine register shall be
issued for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the
taking of the certificate of Philippine register shall be optional with the owner.

"Domestic ownership," as used in this section, means ownership vested in some one or
more of the following classes of persons: (a) Citizens or native inhabitants of the Philippine
Islands; (b) citizens of the United States residing in the Philippine Islands; (c) any corporation
or company composed wholly of citizens of the Philippine Islands or of the United States or
of both, created under the laws of the United States, or of any State thereof, or of thereof, or
the managing agent or master of the vessel resides in the Philippine Islands

Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and
eighteen, had a certificate of Philippine register under existing law, shall likewise be deemed
a vessel of domestic ownership so long as there shall not be any change in the ownership
thereof nor any transfer of stock of the companies or corporations owning such vessel to
person not included under the last preceding paragraph.
Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to
read as follows:

SEC. 1176. Investigation into character of vessel. — No application for a certificate of

Philippine register shall be approved until the collector of customs is satisfied from an
inspection of the vessel that it is engaged or destined to be engaged in legitimate trade
and that it is of domestic ownership as such ownership is defined in section eleven hundred
and seventy-two of this Code.

The collector of customs may at any time inspect a vessel or examine its owner, master,
crew, or passengers in order to ascertain whether the vessel is engaged in legitimate trade
and is entitled to have or retain the certificate of Philippine register.

SEC. 1202. Limiting number of foreign officers and engineers on board vessels. — No
Philippine vessel operating in the coastwise trade or on the high seas shall be permitted to
have on board more than one master or one mate and one engineer who are not citizens of
the United States or of the Philippine Islands, even if they hold licenses under section one
thousand one hundred and ninety-nine hereof. No other person who is not a citizen of the
United States or of the Philippine Islands shall be an officer or a member of the crew of such
vessel. Any such vessel which fails to comply with the terms of this section shall be required
to pay an additional tonnage tax of fifty centavos per net ton per month during the
continuance of said failure.

ISSUES.

Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether
Act No 2761 of the Philippine Legislature is valid in whole or in part — whether the Government of
the Philippine Islands, through its Legislature, can deny the registry of vessel in its coastwise trade
to corporations having alien stockholders .

OPINION.

1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the
Philippine Legislature to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific
delegation of authority to the Government of the Philippine Islands to regulate the transportation of
merchandise and passengers between ports or places therein, the liberal construction given to the
provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the grant by
the Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature,
are certainly superabundant authority for such a law. While the Act of the local legislature may in a
way be inconsistent with the Act of Congress regulating the coasting trade of the Continental United
States, yet the general rule that only such laws of the United States have force in the Philippines as
are expressly extended thereto, and the abnegation of power by Congress in favor of the Philippine
Islands would leave no starting point for convincing argument. As a matter of fact, counsel for
petitioner does not assail legislative action from this direction (See U. S. vs. Bull [1910], 15 Phil., 7;
Sinnot vs. Davenport [1859] 22 How., 227.)

2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of
Act No. 2761. The first paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again
in the first paragraph of the Philippine Bill of Rights as set forth in the Jones Law, provides "That no
law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without
due process of law, or deny to any person therein the equal protection of the laws." Counsel says
that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in
effect, prohibits the corporation from owning vessels, and because classification of corporations
based on the citizenship of one or more of their stockholders is capricious, and that Act No. 2761
deprives the corporation of its properly without due process of law because by the passage of the
law company was automatically deprived of every beneficial attribute of ownership in the Bato and
left with the naked title to a boat it could not use .

The guaranties extended by the Congress of the United States to the Philippine Islands have been
used in the same sense as like provisions found in the United States Constitution. While the "due
process of law and equal protection of the laws" clause of the Philippine Bill of Rights is couched in
slightly different words than the corresponding clause of the Fourteenth Amendment to the United
States Constitution, the first should be interpreted and given the same force and effect as the latter.
(Kepner vs. U.S. [1904], 195 U. S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull
[1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has been announced in classic
decisions of the United States Supreme Court. Even at the expense of restating what is so well
known, these basic principles must again be set down in order to serve as the basis of this decision.

The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of
Rights, are universal in their application to all person within the territorial jurisdiction, without regard
to any differences of race, color, or nationality. The word "person" includes aliens. (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations,
likewise, are "persons" within the scope of the guaranties in so far as their property is concerned.
(Santa Clara County vs. Southern Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining
Co. vs. Pennsylvania [1888],.125 U. S., 181 Covington & L. Turnpike Road Co. vs. Sandford [1896],
164 U. S., 578.) Classification with the end in view of providing diversity of treatment may be made
among corporations, but must be based upon some reasonable ground and not be a mere arbitrary
selection (Gulf, Colorado & Santa Fe Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of laws
held unconstitutional because of unlawful discrimination against aliens could be cited. Generally,
these decisions relate to statutes which had attempted arbitrarily to forbid aliens to engage in
ordinary kinds of business to earn their living. (State vs. Montgomery [1900], 94 Maine, 192,
peddling — but see. Commonwealth vs. Hana [1907], 195 Mass., 262; Templar vs. Board of
Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356,
discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed ,
481; Fraser vs. McConway & Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley
[1898], 187 Penn., 193, all relating to the employment of aliens by private corporations.)

A literal application of general principles to the facts before us would, of course, cause the inevitable
deduction that Act No. 2761 is unconstitutional by reason of its denial to a corporation, some of
whole members are foreigners, of the equal protection of the laws. Like all beneficient propositions,
deeper research discloses provisos. Examples of a denial of rights to aliens notwithstanding the
provisions of the Fourteenth Amendment could be cited. (Tragesser vs.Gray [1890], 73 Md., 250,
licenses to sell spirituous liquors denied to persons not citizens of the United States;
Commonwealth vs. Hana [1907], 195 Mass , 262, excluding aliens from the right to peddle;
Patsone vs.Commonwealth of Pennsylvania [1914], 232 U. S. , 138, prohibiting the killing of any wild
bird or animal by any unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70 Fla., 442,
discriminating in favor of citizens with reference to the taking for private use of the common property
in fish and oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U. S.,.175,
and Crane vs. New York [1915], 239 U. S., 195, limiting employment on public works by, or for, the
State or a municipality to citizens of the United States.)

One of the exceptions to the general rule, most persistent and far reaching in influence is, that
neither the Fourteenth Amendment to the United States Constitution, broad and comprehensive as it
is, nor any other amendment, "was designed to interfere with the power of the State, sometimes
termed its `police power,' to prescribe regulations to promote the health, peace, morals, education,
and good order of the people, and legislate so as to increase the industries of the State, develop its
resources and add to its wealth and prosperity. From the very necessities of society, legislation of a
special character, having these objects in view, must often be had in certain districts."
(Barbier vs. Connolly [1884], 113 U.S., 27; New Orleans Gas Co. vs. Lousiana Light Co. [1885], 115
U.S., 650.) This is the same police power which the United States Supreme Court say "extends to so
dealing with the conditions which exist in the state as to bring out of them the greatest welfare in of
its people." (Bacon vs.Walker [1907], 204 U.S., 311.) For quite similar reasons, none of the provision
of the Philippine Organic Law could could have had the effect of denying to the Government of the
Philippine Islands, acting through its Legislature, the right to exercise that most essential, insistent,
and illimitable of powers, the sovereign police power, in the promotion of the general welfare and the
public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Rafferty [1915], 32 Phil.,
580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) Another notable exception permits
of the regulation or distribution of the public domain or the common property or resources of the
people of the State, so that use may be limited to its citizens. (Ex parte Gilleti [1915], 70 Fla., 442;
McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania [1914],
232U. S., 138.) Still another exception permits of the limitation of employment in the construction of
public works by, or for, the State or a municipality to citizens of the United States or of the State.
(Atkin vs. Kansas [1903],191 U. S., 207; Heim vs. McCall [1915], 239 U.S., 175; Crane vs. New York
[1915], 239 U. S., 195.) Even as to classification, it is admitted that a State may classify with
reference to the evil to be prevented; the question is a practical one, dependent upon experience.
(Patsone vs.Commonwealth of Pennsylvania [1914], 232 U. S., 138.)

To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate
of Philippine registry only on condition that they be composed wholly of citizens of the Philippine
Islands or of the United States or both, as not infringing Philippine Organic Law, it must be done
under some one of the exceptions here mentioned This must be done, moreover, having particularly
in mind what is so often of controlling effect in this jurisdiction — our local experience and our
peculiar local conditions.

To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found
more than three thousand islands. Literally, and absolutely, steamship lines are, for an Insular
territory thus situated, the arteries of commerce. If one be severed, the life-blood of the nation is lost.
If on the other hand these arteries are protected, then the security of the country and the promotion
of the general welfare is sustained. Time and again, with such conditions confronting it, has the
executive branch of the Government of the Philippine Islands, always later with the sanction of the
judicial branch, taken a firm stand with reference to the presence of undesirable foreigners. The
Government has thus assumed to act for the all-sufficient and primitive reason of the benefit and
protection of its own citizens and of the self-preservation and integrity of its dominion. (In
re Patterson [1902], 1 Phil., 93; Forbes vs.Chuoco, Tiaco and Crossfield [1910], 16 Phil., 534;.228
U.S., 549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by such
solid and reputable firms as the instant claimant, might indeed traverse the waters of the Philippines
for ages without doing any particular harm. Again, some evilminded foreigner might very easily take
advantage of such lavish hospitality to chart Philippine waters, to obtain valuable information for
unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or American commerce.
Moreover, under the Spanish portion of Philippine law, the waters within the domestic jurisdiction are
deemed part of the national domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish
Law of Waters of August 3, 1866, arts 1, 2, 3.) Common carriers which in the Philippines as in the
United States and other countries are, as Lord Hale said, "affected with a public interest," can only
be permitted to use these public waters as a privilege and under such conditions as to the
representatives of the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.)

In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before
mentioned, Justice Holmes delivering the opinion of the United States Supreme Court said:
 This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird
or animal except in defense of person or property, and `to that end' makes it unlawful for
such foreign-born person to own or be possessed of a shotgun or rifle; with a penalty of $25
and a forfeiture of the gun or guns. The plaintiff in error was found guilty and was sentenced
to pay the abovementioned fine. The judgment was affirmed on successive appeals. (231
Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the statute is
contrary to the 14th Amendment and also is in contravention of the treaty between the United
States and Italy, to which latter country the plaintiff in error belongs .

Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of
property, and discrimination against such aliens as a class. But the former really depends
upon the latter, since it hardly can be disputed that if the lawful object, the protection of wild
life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep., 600), warrants the
discrimination, the, means adopted for making it effective also might be adopted. . . .

The discrimination undoubtedly presents a more difficult question. But we start with
reference to the evil to be prevented, and that if the class discriminated against is or
reasonably might be considered to define those from whom the evil mainly is to be feared, it
properly may be picked out. A lack of abstract symmetry does not matter. The question is a
practical one, dependent upon experience. . . .

The question therefore narrows itself to whether this court can say that the legislature of
Pennsylvania was not warranted in assuming as its premise for the law that resident
unnaturalized aliens were the peculiar source of the evil that it desired to prevent.
(Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.)

Obviously the question, so stated, is one of local experience, on which this court ought to be
very slow to declare that the state legislature was wrong in its facts (Adams vs. Milwaukee,
228 U.S., 572, 583; 57 L. ed., 971,.977; 33 Sup. Ct. Rep., 610.) If we might trust popular
speech in some states it was right; but it is enough that this court has no such knowledge of
local conditions as to be able to say that it was manifestly wrong. . . .

Judgment affirmed.

We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders,
is entitled to the protection afforded by the due-process of law and equal protection of the laws
clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of the Philippine Legislature, in
denying to corporations such as Smith, Bell &. Co. Ltd., the right to register vessels in the Philippines
coastwise trade, does not belong to that vicious species of class legislation which must always be
condemned, but does fall within authorized exceptions, notably, within the purview of the police
power, and so does not offend against the constitutional provision.

This opinion might well be brought to a close at this point. It occurs to us, however, that the
legislative history of the United States and the Philippine Islands, and, probably, the legislative
history of other countries, if we were to take the time to search it out, might disclose similar attempts
at restriction on the right to enter the coastwise trade, and might thus furnish valuable aid by which
to ascertain and, if possible, effectuate legislative intention.

3. The power to regulate commerce, expressly delegated to the Congress by the

Constitution, includes the power to nationalize ships built and owned in the United States by
registries and enrollments, and the recording of the muniments of title of American vessels.
The Congress "may encourage or it may entirely prohibit such commerce, and it may
 regulate in any way it may see fit between these two extremes." (U.S. vs.Craig [1886], 28
Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How.,
283.)

Acting within the purview of such power, the first Congress of the United States had not been long
convened before it enacted on September 1, 1789, "An Act for Registering and Clearing Vessels,
Regulating the Coasting Trade, and for other purposes." Section 1 of this law provided that for any
ship or vessel to obtain the benefits of American registry, it must belong wholly to a citizen or citizens
of the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed, but the
same idea was carried into the Acts of Congress of December 31, 1792 and February 18, 1793. (1
Stat. at L., 287, 305.).Section 4 of the Act of 1792 provided that in order to obtain the registry of any
vessel, an oath shall be taken and subscribed by the owner, or by one of the owners thereof, before
the officer authorized to make such registry, declaring, "that there is no subject or citizen of any
foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested in
such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even went so far as to
say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of
such transfer a citizen of and resident within the United States, ... every such vessel with her tackle,
apparel, and furniture, and the cargo found on board her, shall be forefeited." In case of alienation to
a foreigner, Chief Justice Marshall said that all the privileges of an American bottom were ipso
facto forfeited. (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even as late as 1873, the
Attorney-General of the United States was of the opinion that under the provisions of the Act of
December 31, 1792, no vessel in which a foreigner is directly or indirectly interested can lawfully be
registered as a vessel of the United. States. (14 Op. Atty.-Gen. [U.S.], 340.)

These laws continued in force without contest, although possibly the Act of March 3, 1825, may have
affected them, until amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the
privileges of registry from vessels wholly owned by a citizen or citizens of the United States to
corporations created under the laws of any of the states thereof. The law, as amended, made
possible the deduction that a vessel belonging to a domestic corporation was entitled to registry or
enrollment even though some stock of the company be owned by aliens. The right of ownership of
stock in a corporation was thereafter distinct from the right to hold the property by the corporation
(Humphreys vs. McKissock [1890], 140 U.S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op.
Atty.-Gen. [U.S.],188.)

On American occupation of the Philippines, the new government found a substantive law in
operation in the Islands with a civil law history which it wisely continued in force Article fifteen of the
Spanish Code of Commerce permitted any foreigner to engage in Philippine trade if he had legal
capacity to do so under the laws of his nation. When the Philippine Commission came to enact the
Customs Administrative Act (No. 355) in 1902, it returned to the old American policy of limiting the
protection and flag of the United States to vessels owned by citizens of the United States or by
native inhabitants of the Philippine Islands (Sec. 117.) Two years later, the same body reverted to
the existing Congressional law by permitting certification to be issued to a citizen of the United
States or to a corporation or company created under the laws of the United States or of any state
thereof or of the Philippine Islands (Act No. 1235, sec. 3.) The two administration codes repeated the
same provisions with the necessary amplification of inclusion of citizens or native inhabitants of the
Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And now Act No.
2761 has returned to the restrictive idea of the original Customs Administrative Act which in turn was
merely a reflection of the statutory language of the first American Congress.

Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of
Philippine registry, are thus found not to be as radical as a first reading would make them appear.
Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an
anti-alien shipping act. The ultimate purpose of the Legislature is to encourage Philippine ship-
building. This, without doubt, has, likewise, been the intention of the United States Congress in
passing navigation or tariff laws on different occasions. The object of such a law, the United States
Supreme Court once said, was to encourage American trade, navigation, and ship-building by giving
American ship-owners exclusive privileges. (Old Dominion Steamship Co. vs.Virginia [1905], 198
U.S., 299; Kent's Commentaries, Vol. 3, p. 139.)

In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the
following:

Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as
contradistinguished from foreign; and to preserve the. Government from fraud by foreigners,
in surreptitiously intruding themselves into the American commercial marine, as well as
frauds upon the revenue in the trade coastwise, that this whole system is projected.

The United States Congress in assuming its grave responsibility of legislating wisely for a new
country did so imbued with a spirit of Americanism. Domestic navigation and trade, it decreed, could
only be carried on by citizens of the United States. If the representatives of the American people
acted in this patriotic manner to advance the national policy, and if their action was accepted without
protest in the courts, who can say that they did not enact such beneficial laws under the all-
pervading police power, with the prime motive of safeguarding the country and of promoting its
prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos, representing the
mandate of the Filipino people and the guardian of their rights, acting under practically autonomous
powers, and imbued with a strong sense of Philippinism, has desired for these Islands safety from
foreign interlopers, the use of the common property exclusively by its citizens and the citizens of the
United States, and protection for the common good of the people. Who can say, therefore, especially
can a court, that with all the facts and circumstances affecting the Filipino people before it, the
Philippine Legislature has erred in the enactment of Act No. 2761?

Surely, the members of the judiciary are not expected to live apart from active life, in monastic
seclusion amidst dusty tomes and ancient records, but, as keen spectators of passing events and
alive to the dictates of the general — the national — welfare, can incline the scales of their decisions
in favor of that solution which will most effectively promote the public policy. All the presumption is in
favor of the constitutionally of the law and without good and strong reasons, courts should not
attempt to nullify the action of the Legislature. "In construing a statute enacted by the Philippine
Commission (Legislature), we deem it our duty not to give it a construction which would be
repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another
construction not in conflict with the higher law." (In re Guariña [1913], 24. Phil., 36; U.S. vs. Ten Yu
[1912], 24 Phil., 1.) That is the true construction which will best carry legislative intention into effect.

With full consciousness of the importance of the question, we nevertheless are clearly of the opinion
that the limitation of domestic ownership for purposes of obtaining a certificate of Philippine registry
in the coastwise trade to citizens of the Philippine Islands, and to citizens of the United States, does
not violate the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916 No
treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and constitutional .

The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.

G.R. No. L-2832 November 24, 1906

REV. JORGE BARLIN, in his capacity as apostolic

administrator of this vacant bishopric and legal
representative of the general interests of the Roman Catholic
Apostolic Church in the diocese of Nueva Caceres,Plaintiff-
Appellee, vs. P. VICENTE RAMIREZ, ex-rector of the Roman
Catholic Apostolic Parochial Church of Lagonoy, AND THE
MUNICIPALITY OF LAGONOY,Defendants-Appellants.

Manly & Gallup for appellants.

Leoncio Imperial and Chicote, Miranda & Sierra for appellee.

WILLARD, J.:

There had been priests of the Roman Catholic Church in the pueblo
of Lagonoy, in the Province of Ambos Camarines, since 1839. On
the 13th of January, 1869, the church and convent were burned.
They were rebuilt between 1870 and 1873. There was evidence that
this was done by the order of the provincial governor. The labor
necessary for this reconstruction was performed by the people of
the pueblo the direction of the cabeza de barangay. Under the law
then in force, each man in the pueblo was required to work for the
government, without compensation, for forty days every year. The
time spent in the reconstruction of these buildings was counted as a
part of the forty days. The material necessary was brought and paid
for in part by the parish priest from the funds of the church and in
part was donated by certain individuals of the pueblo. After the
completion of the church it was always administered, until
November 14, 1902, by a priest of a Roman Catholic Communion
and all the people of the pueblo professed that faith and belonged
to that church. chanroblesvirtualawlibrary chanrobles virtual law library

The defendant, Ramirez, having been appointed by the plaintiff

parish priest, took possession of the church on the 5th of July,
1901. he administered it as such under the orders of his superiors
until the 14th day of November, 1902. His successor having been
then appointed, the latter made a demand on this defendant for the
delivery to him of the church, convent, and cemetery, and the
sacred ornaments, books, jewels, money, and other property of the
church. The defendant, by a written document of that date, refused
to make such delivery. That document is as follows:

At 7 o'clock last night I received through Father Agripino Pisino your

respected order of the 12th instant, wherein I am advised of the
appointment of Father Pisino as acting parish priest of this town,
and directed to turn over to him this parish and to report to you at
the vicarage. In reply thereto, I have the honor to inform you that
the town of Lagonoy, in conjunction with the parish priest thereof,
has seen fit to sever connection with the Pope at Rome and his
representatives in these Islands, and join the Filipino Church, the
head of which is at Manila. This resolution of the people was
reduced to writing and triplicate copies made, of which I beg to
inclose a copy herewith. chanroblesvirtualawlibrary chanrobles virtual law library

For this reason I regret to inform you that I am unable to obey your
said order by delivering to Father Agripino Pisino the parish property
of Lagonoy which, as I understand, is now outside of the control of
the Pope and his representatives in these Islands. May God guard
you many years. chanroblesvirtualawlibrary chanrobles virtual law library

Lagonoy, November 14, 1902.

(Signed) VICENTE RAMIREZ. chanroblesvirtualawlibrary chanrobles virtual law library

RT. REV. VICAR OF THIS DISTRICT.

The document, a copy of which is referred to in this letter, is as

follows:

LAGONOY, November, 9, 1902. chanrobles virtual law library

The municipality of this town and some of its most prominent

citizens having learned through the papers from the capital of these
Islands of the constitution of the Filipino National Church, separate
from the control of the Pope at Rome by reason of the fact that the
latter has refused to either recognize or grant the rights to the
Filipino clergy which have many times been urged, and it appearing
to us that the reasons advanced why such offices should be given to
the Filipino clergy are evidently well-founded, we have deemed it
advisable to consult with the parish priest of this town as to whether
it would be advantageous to join the said Filipino Church and to
separate from the control of the Pope as long as he continues to
ignore the rights of the said Filipino clergy, under the conditions
that there will be no change in the articles of faith, and that the
sacraments and other dogmas will be recognized and particularly
that of the immaculate conception of the mother of our Lord. But
the moment the Pope at Rome recognizes and grants the rights
heretofore denied to the Filipino clergy we will return to his control.
In view of this, and subject to this condition, the reverend parish
priest, together with the people of the town, unanimously join in
declaring that from this date they separate themselves from the
obedience and control of the Pope and join the Filipino National
Church. This assembly and the reverend parish priest have
accordingly adopted this resolution written in triplicate, and resolved
to send a copy thereof to the civil government of this province for
its information, and do sign the same below. Vicente Ramirez,
Francisco Israel, Ambrosio Bocon, Florentino Relloso, Macario P.
Ledesma, Cecilio Obias, Balbino Imperial, Juan Preseñada, Fernando
Deudor, Mauricio Torres, Adriano Sabater.

At the meeting at which the resolution spoken of in this document

was adopted, there were present about 100 persons of the pueblo.
There is testimony in the case that the population of the pueblo was
at that time 9,000 and that all but 20 of the inhabitants were
satisfied with the action there taken. Although it is of no importance
in the case, we are inclined to think that the testimony to this effect
merely means that about 100 of the principal men of the town were
in favor of the resolution and about 20 of such principal men were
opposed to it. After the 14th of November, the defendant, Ramirez,
continued in the possession of the church and other property and
administered the same under the directions of his superior,
the Obispo Maximo of the Independent Filipino Church. The rites
and ceremonies and the manner of worship were the same after the
14th day of November as they were before, but the relations
between the Roman Catholic Church and the defendant had been
entirely severed.chanroblesvirtualawlibrary chanrobles virtual law library

In January, 1904, the plaintiff brought this action against the

defendant, Ramirez, alleging in his amended complaint that the
Roman Catholic Church was the owner of the church building, the
convent, cemetery, the books, money, and other property belonging
thereto, and asking that it be restored to the possession thereof and
that the defendant render an account of the property which he had
received and which was retained by him, and for other relief. chanroblesvirtualawlibrarychanrobles virtual law library

The answer of the defendant, Ramirez, in addition to a general

denial of the allegation of the complaint, admitted that he was in
the possession and administration of the property described therein
with the authority of the municipality of Lagonoy and of the
inhabitants of the same, who were the lawful owners of the said
property. After this answer had been presented, and on the 1st day
of November, 1904, the municipality of Lagonoy filed a petition
asking that it be allowed to intervene in the case and join with the
defendant, Ramirez, as a defendant therein. This petition been
granted, the municipality of the 1st day of December filed an
answer in which it alleged that the defendant, Ramirez, was in
possession of the property described in the complaint under the
authority and with the consent of the municipality of Lagonoy and
that such municipality was the owner thereof. chanroblesvirtualawlibrary chanrobles virtual law library

Plaintiff answered this complaint, or answer in intervention, and the

case was tried and final judgment in entered therein in favor of the
plaintiff and against the defendants. The defendants then brought
the case here by a bill of exceptions. chanroblesvirtualawlibrary chanrobles virtual law library

That the person in the actual possession of the church and other
property described in the complaint is the defendant, Ramirez, is
plainly established by the evidence. It does not appear that the
municipality, as a corporate body, ever took any action in reference
to this matter until they presented their petition for intervention in
this case. In fact, the witnesses for the defense, when they speak of
the ownership of the buildings, say that they are owned by the
people of the pueblo, and one witness, the president, said that the
municipality as a corporation had nothing whatever to do with the
matter. That the resolution adopted on the 14th of November, and
which has been quoted above, was not the action of the
municipality, as such, is apparent from an inspection thereof. chanroblesvirtuala wlibrary chanrobles virtual law library

The witnesses for the defenses speak of a delivery of the church by

the people of the pueblo to the defendant, Ramirez, but there is no
evidence in the case of any such delivery. Their testimony in regard
to the delivery always refers to the action taken on the 14th of
November, a record of which appears that in the document above
quoted. It is apparent that the action taken consisted simply in
separating themselves from the Roman Catholic Church, and
nothing is said therein in reference to the material property then in
possession of the defendant, Ramirez. chanroblesvirtualawlibrary chanrobles virtual law library

There are several grounds upon which this judgment must be

affirmed.chanroblesvirtualawlibrary chanrobles virtual law library

(1) As to the defendant, Ramirez, it appears that he took possession

of the property as the servant or agent of the plaintiff. The only
right which he had to the possession at the time he took it, was the
right which was given to him by the plaintiff, and he took
possession under the agreement to return that possession whenever
it should be demanded of him. Under such circumstances he will not
be allowed, when the return of such possession is demanded by him
the plaintiff, to say that the plaintiff is not the owner of the property
and is not entitled to have it delivered back to him. The principle of
law that a tenant can not deny his landlord's title, which is found in
section 333, paragraph 2, of the Code of Civil Procedure, and also in
the Spanish law, is applicable to a case of this kind. An answer of
the defendant, Ramirez, in which he alleged that he himself was the
owner of the property at the time he received it from the plaintiff, or
in which he alleged that the pueblo was the owner of the property
at that time, would constitute no defense. There is no claim made
by him that since the delivery of the possession of the property to
him by the plaintiff he has acquired the title thereto by other
means, nor does he is own behalf make any claim whatever either
to the property or to the possession thereof. chanroblesvirtualawlibrary chanrobles virtual law library

(2) The municipality of Lagonoy, in its answer, claims as such, to be

the owner of the property. As we have said before, the evidence
shows that it never was in the physical possession of the property.
But waiving this point and assuming that the possession of Ramirez,
which he alleges in his answer is the possession of the municipality,
gives the municipality the rights of a possessor, the question still
arises, Who has the better right to the present possession of the
property? The plaintiff, in 1902, had been in the lawful possession
thereof for more than thirty years and during all that time its
possession had never been questioned or disturbed. That possession
has been taken away from it and it has the right now to recover the
possession from the persons who have so deprived it of such
possession, unless the latter can show that they have a better right
thereto. This was the preposition which was discussed and settled in
the case of Bishop of Cebu vs. Mangaron, 1 No. 1748, decided June
1, 1906. That decision holds that as against one who has been in
possession for the length of the plaintiff has been in possession, and
who had been deprived of his possession, and who can not produce
any written evidence of title, the mere fact that the defendant is in
possession does not entitle the defendant to retain that possession.
In order that he may continue in possession, he must show a better
right thereto.
chanroblesvirtualawlibrary chanrobles virtual law library

The evidence in this case does not show that the municipality has,
as such, any right of whatever in the property in question. It has
produced no evidence of ownership. Its claim of ownership is rested
in its brief in this court upon the following propositions: That the
property in question belonged prior to the treaty of Paris to the
Spanish Government; that by the treaty of Paris the ownership
thereof passed to the Government of the United States; that by
section 12 of the act of Congress of July 1, 1902, such property was
transferred to the Government of the Philippine Islands, and that by
the circular of that Government, dated November 11, 1902, the
ownership and the right to the possession of this property passed to
the municipality of Lagonoy. If, for the purposes of the argument,
we should admit that the other propositions are true, there is no
evidence whatever to support the last proposition, namely that the
Government of the Philippine Islands has transferred the ownership
of this church to the municipality of Lagonoy. We have found no
circular of the date above referred to. The one of February 10,
1903, which is probably the one intended, contains nothing that
indicates any such transfer. As to the municipality of Lagonoy,
therefore, it is very clear that it has neither title, ownership, nor
right of possession.chanroblesvirtualawlibrary chanrobles virtual law library

(3) We have said that it would have no such title or ownership ever
admitting that the Spanish Government was the owner of the
property and it has passed by the treaty of Paris to the American
Government. But this assumption is not true. As a matter of law,
the Spanish Government at the time the treaty of peace was signed,
was not the owner of this property, nor of any other property like it,
situated in the Philippine Islands. chanroblesvirtualawlibrary chanrobles virtual law library

It does not admit of doubt that from the earliest times the parish
churches in the Philippine Islands were built by the Spanish
Government. Law 2, title 2, book 1, of the Compilation of the Laws
of the Indies is, in part, as follows:

Having erected all the churches, cathedrals, and parish houses of

the Spaniards and natives of our Indian possessions from their
discovery at the cost and expense of our royal treasury, and applied
for their service and maintenance the part of the tithes belonging to
us by apostolic concession according to the division we have made.

Law 3 of the same title to the construction of parochial churches

such as the one in question. That law is as follows:

The parish churches which was erected in Spanish towns shall be of

durable and decent construction. Their costs shall be divided and
paid in three parts: One by our royal treasury, another by the
residents and Indian encomenderos of the place where such
churches are constructed, and the other part by the Indians who
abide there; and if within the limits of a city, village, or place there
should be any Indians incorporated to our royal crown, we
command that for our part there be contributed the same amount
as the residents and encomenderos, respectively, contribute; and
the residents who have no Indians shall also contribute for this
purpose in accordance with their stations and wealth, and that
which is so given shall be deducted from the share of the Indians
should pay.
Law 11 of the same title is as follows:

We command that the part of the tithes which belongs to the fund
for the erection of churches shall be given to their superintendents
to be expended for those things necessary for these churches with
the advice of the prelates and officials, and by their warrants, and
not otherwise. And we request and charge the archbishops and
bishops not to interfere in the collection and disbursement thereof,
but to guard these structures.

Law 4, title 3, book 6, is as follows:

In all settlements, even though the Indians are few, there shall be
erected a church where mass can be decently held, and it shall have
a donor with a key, notwithstanding the fact that it be the subject to
or separate from a parish.

Not only were all the parish churches in the Philippines erected by
the King and under his direction, but it was made unlawful to erect
a church without the license of the King. This provision is contained
in Law 2, title 6, book 1, which is as follows:

Whereas it is our intention to erect, institute, found, and maintain

all cathedrals, parish churches, monasteries, votive hospitals,
churches, and religious and pious establishments where they are
necessary for the teaching, propagation, and preaching of the
doctrine of our sacred Roman Catholic faith, and to aid to this effect
with out royal treasury whenever possible, and to receive
information of such places where they should be founded and are
necessary, and the ecclesiastical patronage of all our Indies
belonging to us: chanrobles virtual law library

We command that there shall not be erected, instituted, founded, or

maintained any cathedral, parish church, monastery, hospital, or
votive churches, or other pious or religious establishment without
our express permission as is provided in Law 1, title 2, and Law 1,
title 3, of this book, notwithstanding any permission heretofore
given by our viceroy or other ministers, which in this respect we
revoke and make null, void, and of no effect.
By agreement at an early date between the Pope and the Crown of
Spain, all tithes in the Indies were given by the former to the latter
and the disposition made the King of the fund thus created is
indicated by Law 1, title 16, book 1, which is as follows:

Whereas the ecclesiastical tithes from the Indies belong to us by the

apostolic concessions of the supreme pontiffs, we command the
officials of our royal treasury of those provinces to collect and cause
to be collected all tithes due and to become due from the crops and
flocks of the residents in the manner in which it has been the
custom to pay the same, and from these tithes the churches shall
be provided with competent persons of good character to serve
them and with all ornaments and things which may be necessary for
divine worship, to the end that these churches may be well served
and equipped, and we shall be informed of God, our Lord; this order
shall be observed where the contrary has not already been directed
by us in connection with the erection of churches.

That the condition of things existing by virtue of the Laws of the

Indies was continued to the present time is indicated by the royal
order of the 31st of January, 1856, and by the royal order of the
13th of August, 1876, both relating to the construction and repair of
churches, there being authority for saying that the latter order was
in force in the Philippines. chanroblesvirtualawlibrary chanrobles virtual law library

This church, and other churches similarly situated in the Philippines,

having been erected by the Spanish Government, and under its
direction, the next question to be considered is, To whom did these
churches belong? chanrobles virtual law library

Title 28 of the third partida is devoted to the ownership of things

and, after discussing what can be called public property and what
can be called private property, speaks, in Law 12, of those things
which are sacred, religious, or holy. That law is as follows:

Law XII. - HOW SACRED OR RELIGIOUS THINGS CAN NOT BE

OWNED BY ANY PERSON. chanroblesvirtualawlibrary chanrobles virtual law library

No sacred, religious, or holy thing, devoted to the service of God,

can be the subject of ownership by any man, nor can it be
considered as included in his property holdings. Although the priests
may have such things in their possession, yet they are not the
owners thereof. They, hold them thus as guardians or servants, or
because they have the care of the same and serve God in or without
them. Hence they were allowed to take from the revenues of the
church and lands what was reasonably necessary for their support;
the balance, belonging to God, was to be devoted to pious
purposes, such as the feeding and clothing of the poor, the support
of orphans, the marrying of poor virgins to prevent their becoming
evil women because of their poverty, and for the redemption of
captives and the repairing of the churches, and the buying of
chalices, clothing, books, and others things which they might be in
need of, and other similar charitable purposes.

And then taking up for consideration the first of the classes in to

which this law has divided these things, it defines in Law 13, title
28, third partida, consecrated things. That law is as follows:

Sacred things, we say, are those which are consecrated by the

bishops, such as churches, the altars therein, crosses, chalices,
censers, vestments, books, and all other things which are in tended
for the service of the church, and the title to these things can not be
alienated except in certain specific cases as we have already shown
in the first partida of this book by the laws dealing with this subject.
We say further that even where a consecrated church is razed, the
ground upon which it formerly stood shall always be consecrated
ground. But if any consecrated church should fall into the hands of
the enemies of our faith it shall there and then cease to be sacred
as long as the enemy has it under control, although once recovered
by the Christians, it will again become sacred, reverting to its
condition before the enemy seized it and shall have all the right and
privileges formerly belonging to it.

That the principles of the partida in reference to churches still exist

is indicated by Sanchez Roman, whose work on the Civil Law
contains the following statement:

First Group. Spiritual and corporeal or ecclesiastical. A.Spiritual. -

From early times distinction has been made by authors and by law
between things governed by divine law, called divine, and those
governed by human law, called human, and although the former
can not be the subject of civil juridical relations, their nature and
species should be ascertained either to identify them and exclude
them from such relations or because they furnish a complete
explanation of the foregoing tabulated statement, or finally because
the laws of thepartida deal with them.

Divine things are those which are either directly or indirectly

established by God for his service and sanctification of men and
which are governed by divine or canonical laws. This makes it
necessary to divide them into spiritual things, which are those which
have a direct influence on the religious redemption of man such as
the sacrament, prayers, fasts, indulgences, etc., and corporeal or
ecclesiastical, which are those means more or less direct for the
proper religious salvation of man.

7. First Group. Divine things. B.Corporeal or ecclesiastical

things (sacred, religious, holy, and temporal belonging to the
church). - Corporeal or ecclesiastical things are so divided. chanroblesvirtualawlibrary chanrobles virtual law library

( a) Sacred things are those devoted to God, religion, and worship

in general, such as temples, altars, ornaments, etc. These things
can not be alienated except for some pious purpose and in such
cases as are provided for in the laws, according to which their
control pertains to the ecclesiastical authorities, and in so far as
their use is concerned, to the believers and the clergy. (2 Derecho
Civil Español, Sanchez Roman, p. 480; 8 Manresa, Commentaries
on the Spanish Civil Code, p. 636; 3 Alcubilla, Diccionario de la
Administracion Española, p. 486.)

The partidas defined minutely what things belonged to the public in

general and what belonged to private persons. In the first group
churches are not named. The present Civil Code declares in article
338 that property is of public or private ownership. Article 339,
which defines public property, is as follows:

Property of public ownership is - chanrobles virtual law library

1. That destined to the public use, such as roads, canals, rivers,
torrents, ports, and bridges constructed by the State, and banks,
shores, roadsteads, and that of similar character. chanroblesvirtualawlibrary chanrobles virtual law library

2. That belonging exclusively to the state without being for public

use and which is destined to some public service, or to the
development of the national wealth, such as walls, fortresses, and
other works for the defense of the territory, and mines, until their
concession has been granted.

The code also defines the property of provinces and of pueblos, and
in defining what property is of public use, article 344 declares as
follows:

Property for public use in provinces and in towns comprises the

provincial and town roads, the squares, streets, fountains, and
public waters, the promenades, and public works of general service
supported by the said towns or provinces. chanroblesvirtualawlibrary chanrobles virtual law library

All other property possessed by either is patrimonial, and shall be

governed by the provisions of this code, unless otherwise prescribe
in special laws.

It will be noticed that in either one of these articles is any mention

made of churches. When the Civil Code undertook to define those
things in a pueblo which were for the common use of the
inhabitants of the pueblo, or which belonged to the State, while it
mentioned a great many other things, it did not mention
churches. chanroblesvirtualawlibrary chanrobles virtual law library

It has been said that article 25 of the Regulations for the Execution
of the Mortgage Law indicates that churches belong to the State and
are public property. That article is as follows:

There shall be excepted from the record required by article 2 of the

law: chanrobles virtual law library

First. Property which belongs exclusively to the eminent domain of

the State, and which is for the use of all, such as the shores of the
sea, islands, rivers and their borders, wagon roads, and the roads of
all kinds, with the exception of railroads; streets, parks, public
promenades, and commons of towns, provided they are not lands of
common profit to the inhabitants; walls of cities and parks, ports,
and roadsteads, and any other analogous property during the time
they are in common and general use, always reserving the
servitudes established by law on the shores of the sea and borders
of navigable rivers.
chanroblesvirtualawlibrary chanrobles virtual law library

Second. Public temples dedicated to the Catholic faith.

A reading of this article shows that far from proving that churches
belong to the State and to the eminent domain thereof, it proves
the contrary, for, if they had belonged to the State, they would
have been included in the first paragraph instead of being placed in
a paragraph by themselves. chanroblesvirtualawlibrary chanrobles virtual law library

The truth is that, from the earliest times down to the cession of the
Philippines to the United States, churches and other consecrated
objects were considered outside of the commerce of man. They
were not public property, nor could they be subjects of private
property in the sense that any private person could the owner
thereof. They constituted a kind of property distinctive characteristic
of which was that it was devoted to the worship of God. chanroblesvirtualawlibrary chanrobles virtual law library

But, being material things was necessary that some one should
have the care and custody of them and the administration thereof,
and the question occurs, To whom, under the Spanish law, was
intrusted that possession and administration? For the purposes of
the Spanish law there was only one religion. That was the religion
professed by the Roman Catholic Church. It was for the purposes of
that religion and for the observance of its rites that this church and
all other churches in the Philippines were erected. The possession of
the churches, their care and custody, and the maintenance of
religious worship therein were necessarily, therefore, intrusted to
that body. It was, by virtue of the laws of Spain, the only body
which could under any circumstances have possession of, or any
control over, any church dedicated to the worship of God. By virtue
of those laws this possession and right of control were necessarily
exclusive. It is not necessary or important to give any name to this
right of possession and control exercised by the Roman Catholic
Church in the church buildings of the Philippines prior to 1898. It is
not necessary to show that the church as a juridical person was the
owner of the buildings. It is sufficient to say that this right to the
exclusive possession and control of the same, for the purposes of its
creation, existed. chanroblesvirtualawlibrary chanrobles virtual law library

The right of patronage, existing in the King of Spain with reference

to the churches in the Philippines, did not give him any right to
interfere with the material possession of these buildings. chanroblesvirtualawlibrary chanrobles virtual law library

Title 6 of book 1 of the Compilation of the laws of the Indies

treats Del Patronazgo Real de las Indias. There is nothing in any one
of the fifty-one laws which compose this title which in any way
indicates that the King of Spain was the owner of the churches in
the Indies because he had constructed them. These laws relate to
the right of presentation to ecclesiastical charges and offices. For
example, Law 49 of the title commences as follows:

Because the patronage and right of presentation of all archbishops,

bishops, dignitaries, prevents, curates, and doctrines and all other
beneficiaries and ecclesiastical offices whatsoever belong to us, no
other person can obtain or possess the same without our
presentation as provided in Law 1 and other laws of this title.

Title 15 of the first partida treats of the right of patronage vesting in

private persons, but there is nothing in any one of its fifteen laws
which in any way indicates that the private patron is the owner of
the church. chanroblesvirtualawlibrary chanrobles virtual law library

When it is said that this church never belonged to the Crown of

Spain, it is not intended to say that the Government and had no
power over it. It may be that by virtue of that power of eminent
domain which is necessarily resides in every government, it might
have appropriated this church and other churches, and private
property of individuals. But nothing of this kind was ever attempted
in the Philippines. chanroblesvirtualawlibrary chanrobles virtual law library

It, therefore, follows that in 1898, and prior to the treaty of Paris,
the Roman Catholic Church had by law the exclusive right to the
possession of this church and it had the legal right to administer the
same for the purposes for which the building was consecrated. It
was then in the full and peaceful possession of the church with the
rights aforesaid. That these rights were fully protected by the treaty
of Paris is very clear. That treaty, in article 8, provides, among
other things, as follows:

And it is hereby declared that the relinquishment or cession, as the

case may be, to which the preceding paragraph refers, can not in
any respect impair the property or rights which by law belong to the
peaceful possession of property of all kinds, or provinces,
municipalities, public or private establishments, ecclesiastical or
civic bodies, or any other associations having legal capacity to
acquire and possess property in the aforesaid territories renounced
or ceded, or of private individuals, or whatsoever nationality such
individuals may be.

It is not necessary, however, to invoke the provisions of that treaty.

Neither the Government of the United States, nor the Government
of these Islands, has ever attempted in any way to interfere with
the rights which the Roman Catholic Church had in this building
when Spanish sovereignty ceased in the Philippines. Any
interference that has resulted has been caused by private
individuals, acting without any authority from the Government. chanroblesvirtualawlibrary chanrobles virtual law library

No point is made in the brief of the appellant that any distinction

should be made between the church and the convent. The convent
undoubtedly was annexed to the church and, as to it, the provisions
of Law 19, title 2, book 1, of the Compilation of the Laws of the
Indies would apply. That law is as follows:

We command that the Indians of each town or barrio shall construct

such houses as may be deemed sufficient in which the priests of
such towns or barrios may live comfortably adjoining the parish
church of the place where that may be built for the benefit of the
priests in charge of such churches and engaged in the education
and conversion of their Indian parishioners, and they shall not be
alienated or devoted to any other purpose.

The evidence in this case makes no showing in regard to the

cemetery. It is always mentioned in connection with the church and
convent and no point is made by the possession of the church and
convent, he is not also entitled to recover possession of the
cemetery. So, without discussing the question as to whether the
rules applicable to churches are all respects applicable to
cemeteries, we hold for the purpose of this case that the plaintiff
has the same right to the cemetery that he has to the church. chanroblesvirtualawlibrary chanrobles virtual law library

(4) It is suggested by the appellant that the Roman Catholic Church

has no legal personality in the Philippine Islands. This suggestion,
made with reference to an institution which antedates by almost a
thousand years any other personality in Europe, and which existed
"when Grecian eloquence still flourished in Antioch, and when idols
were still worshiped in the temple of Mecca," does not require
serious consideration. In the preamble to the budget relating to
ecclesiastical obligations, presented by Montero Rios to the Cortes
on the 1st of October 1871, speaking of the Roman Catholic Church,
he says:

Persecuted as an unlawful association since the early days of its

existence up to the time of Galieno, who was the first of the Roman
emperors to admit it among the juridicial entities protected by the
laws of the Empire, it existed until then by the mercy and will of the
faithful and depended for such existence upon pious gifts and
offerings. Since the latter half of the third century, and more
particularly since the year 313, when Constantine, by the edict of
Milan, inaugurated an era of protection for the church, the latter
gradually entered upon the exercise of such rights as were required
for the acquisition, preservation, and transmission of property the
same as any other juridical entity under the laws of the Empire. (3
Dictionary of Spanish Administration, Alcubilla, p. 211. See also the
royal order of the 4th of December, 1890, 3 Alcubilla, 189.)

The judgment of the court below is affirmed, with the costs of this
instance against the appellant. After the expiration of twenty days
from the date hereof let judgment be entered in accordance
herewith, and ten days thereafter the record be remanded to the
court below for execution. So ordered. chanroblesvirtualawlibrary chanrobles virtual law library

RESTRICTIONS ON CAPACITY TO ACT

G.R. No. L-5921 July 25, 1911

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee,

vs.
JUAN CODINA ARENAS AND OTHERS, defendants;
VICENTE SIXTO VILLANUEVA, appellant.

Chicote and Miranda for appellant.

W.A. Kincaid and Thos. L. Hartigan for appellee.

ARELLANO, C.J.:

On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio
Locso, Vicente Sixto Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to
pay, jointly and severally, to the corporation, The Standard Oil Company of New York, the sum of
P3,305. 76, at three months from date, with interest at P1 per month.

On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of
the P3,305.76, together with the interest thereon at the rate of 1 per cent per month from the 15th of
December, 1908, and the costs.

The defendants were summoned, the record showing that summons was served on Vicente Sixto
Villanueva on April 17, 1909.

On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so
notified, the latter on the 14th and the former on the 15th of May, 1909.

On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to
pay jointly and severally to the plaintiff company the sum of P3,305.76, together with the interest
thereon at 1 per cent per month from December 15, 1908, until complete payment should have been
made of the principal, and to pay the costs.

While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente
Sixto Villanueva, appeared and alleged: (1) That on July 24, 1909, the latter was declared to be
insane by the Court of First Instance of the city of Manila; (2) that she was appointed his guardian by
the same court; (3) that, on October 11, following, she was authorized by the court, as guardian, to
institute the proper legal proceedings for the annulment of several bonds given by her husband while
in a state of insanity, among them that concerned in the present cause, issued in behalf of The
Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings
had against her husband and was only by chance informed thereof; (5) that when Vicente S.
Villanueva gave the bond, the subject of this suit, he was already permanently insane, was in that
state when summoned and still continued so, for which reason he neither appeared nor defended
himself in the said litigation; and, in conclusion, she petitioned the court to relieve the said defendant
Villanueva from compliance with the aforestated judgment rendered against him in the suit before
mentioned, and to reopen the trial for the introduction of evidence in behalf of the said defendant
with respect to his capacity at the time of the execution of the bond in question, which evidence
could not be presented in due season on account of the then existing incapacity of the defendant.

The court granted the petition and the trial was reopened for the introduction of evidence, after due
consideration of which, when taken, the court decided that when Vicente Villanueva, on the 15th of
December, 1908, executed the bond in question, he understood perfectly well the nature and
consequences of the act performed by him and that the consent that was given by him for the
purpose was entirely voluntary and, consequently, valid and efficacious. As a result of such findings
the court ruled that the petition for an indefinite stay of execution of the judgment rendered in the
case be denied and that the said execution be carried out.

After the filing of an exception to the above ruling, a new hearing was requested "with reference to
the defendant Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in
support of the appeal submitted to this court and which is based on a single assignment of error as
follows:

Because the lower court found that the monomania of great wealth, suffered by the
defendant Villanueva, does not imply incapacity to execute a bond such as the one herein
concerned.

Certainly the trial court founded its judgment on the basis of the medico-legal doctrine which
supports the conclusion that such monomania of wealth does not necessarily imply the result that
the defendant Villanueva was not a person capable of executing a contract of bond like the one here
in question.

This court has not found the proof of the error attributed to the judgment of the lower court. It would
have been necessary to show that such monomania was habitual and constituted a veritable mental
perturbation in the patient; that the bond executed by the defendant Villanueva was the result of
such monomania, and not the effect of any other cause, that is, that there was not, nor could there
have been any other cause for the contract than an ostentation of wealth and this purely an effect of
monomania of wealth; and that the monomania existed on the date when the bond in question was
executed.

With regard to the first point: "All alienists and those writers who have treated of this branch of
medical science distinguish numerous degrees of insanity and imbecility, some of them, as Casper,
going so far into a wealth of classification and details as to admit the existence of 60 to 80 distinct
states, an enumeration of which is unnecessary. Hence, the confusion and the doubt in the minds of
the majority of the authors of treatises on the subject in determining the limits of sane judgment and
the point of beginning of this incapacity, there being some who consider as a sufficient cause for
such incapacity, not only insanity and imbecility, but even those other chronic diseases or complaints
that momentarily perturb or cloud the intelligence, as mere monomania, somnambulism, epilepsy,
drunkenness, suggestion, anger, and the divers passional states which more or less violently
deprive the human will of necessary liberty." (Manresa, Commentaries on the Civil Code, Vol. V, p.
342.) In our present knowledge of the state of mental alienation such certainly has not yet been
reached as to warrant the conclusion, in a judicial decision, that he who suffers the monomania of
wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed,
in the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that
his mind is deranged when he executes an onerous contract .The bond, as aforesaid, was executed
by Vicente S. Villanueva on December 15, 1908, and his incapacity, for the purpose of providing a
guardian for him, was not declared until July 24, 1909.

The trial court, although it conceded as a fact that the defendant had for several years suffered from
such monomania, decided, however, guided by the medico-legal doctrine above cited, that a
person's believing himself to be what he is not or his taking a mere illusion for a reality is not
necessarily a positive proof of insanity or incapacity to bind himself in a contract. Specifically, in
reference to this case, the following facts were brought out in the testimony given by the physicians,
Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the defendant, the first of whom
had visited him some eight times during the years 1902 and 1903, and the latter, only once, in 1908.
Dr. Cuervo:

Q. But if you should present to him a document which in no wise concerns his houses
and if you should direct him to read it, do you believe that he would understand the contents
of the document?

A. As to understanding it, it is possible that he might, in this I see nothing particularly

remarkable; but afterwards, to decide upon the question involved, it might be that he could
not do that; it depends upon what the question was.

Dr. Ocampo:

Q. Do you say that he is intelligent with respect to things other than those concerning
greatness?

A. Yes, he reasons in matters which do not refer to the question of greatness and wealth.

Q. He can take a written paper and read it and understand it, can he not?

A. Read it, yes, he can read it and understand it, it is probable that he can, I have made
no trial.

Q. Is he not a man of considerable intelligence, only with the exception of this

monomania of greatness and wealth?

A. Of not much intelligence, an ordinary intelligence.

Q. He knows how to read and write, does he not?

A. Yes, sir I believe that he does.

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument
of bond and received the statements of the signers; that he explained to Mr. Villanueva its contents
and when the witness asked the latter whether he wished to sign it he replied that he was willing and
did in fact do so; that the defendant's mental condition appeared to the witness to be normal and
regular and that he observed nothing to indicate the contrary; and that the defendant was quiet and
composed and spoke in an ordinary way without giving cause fir any suspicion that there was
anything abnormal.

Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First
Instance, over which he presided, the case concerning the estate of the Chinaman Go-Cho-Co, and
Mr. Villanueva having been proposed as a surety therein, the witness asked him some questions
about his property, in order to ascertain whether he was solvent and would be adequate surety, and
that Villanueva testified the same as many, others had done, and witness did not notice any
particular disorder or perturbation of his mental faculties; that he answered the questions concerning
the property that he held, stated its value, specified the place where it was situated, his answers
being precisely relevant to the matter treated; that he therefore approved the bond; and that all this
took place between July and September, 1908. This witness having been asked, on cross-
examination, whether Mr. Villanueva, subsequent to the date mentioned, had again been surety in
any other case, and whether it appeared strange to witness that Mr. Villanueva should engage in
giving bonds and whether for that reason he rejected this new bond, replied that it was in that same
case relative to the estate of the Chinaman Go-Cho-Co that he endeavored to investigate, as he
customarily did, with regard to whether Mr. Villanueva had given any other previous bond, and the
discovered that he had in fact previously given bond in a criminal case, but that, as it had already
been cancelled, he had no objection to accepting the one offered by Mr. Villanueva in the said Go-
Cho-Co case.

Capacity to act must be supposed to attach to a person who has not previously been declared
incapable, and such capacity is presumed to continue so long as the contrary be not proved, that is,
that at the moment of his acting he was incapable, crazy, insane, or out his mind: which, in the
opinion of this court, has not been proved in this case.

With regard to the second point, it is very obvious that in every contract there must be a
consideration to substantiate the obligation, so much so that, even though it should not be
expressed in the contract, it is presumed that it exists and that it is lawful, unless the debtor proves
the contrary. (Civil Code, art. 1277.) In the contract of bond the consideration, general, is no other,
as in all contract of pure beneficence, than the liberality of the benefactor. (Id, 1274.) Out of the
ordinary, a bond may be given for some other consideration, according to the agreement and the
free stipulation of the parties and may be, as in onerous and remuneratory contracts, something
remunerative stipulated as an equivalent, on the part of the beneficiary of the bond.

It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm
of Arenas & Co., Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings
with Villanueva; from which it is inferred that the latter could hardly have been moved to favor the
former by the benefit of an assumed obligation to pay him some three thousand pesos, with monthly
interest .But he added that Arenas & Co. obtained an agent to look for sureties for them, to whom
Arenas paid a certain sum of money. The witness did not know, however, whether Arenas gave the
money for the signature of the bond or simply in order that the agent might find sureties. The fact is
that the sureties came with the agent and signed the bond.

The appellant presented, as proof that Villanueva concealed from his family his dealings with
Arenas, a note by the latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is,
two days before Villanueva was declared to be in default, inviting him to a conference "for the
purpose of treating of a matter of great importance of much interest to Villanueva, between 5 and 6
of that same day, in the garden and on the benches which are in front of the Delmonico Hotel, on
Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can not be affirmed
with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving
bonds for a certain consideration or remuneration; but neither can it be sustained that there was no
other cause for the giving of the bond in question than the mental disorder that dominated the
intellect of the person obligated, to the extent of his believing himself so oversupplied with money as
to be able to risk it in behalf of any person whatever. There is no proof that the said bond was merely
the product of an insensate ostentation of wealth, nor that, if Villanueva boasted of wealth in giving
several bonds, among them that herein concerned, he was influenced only by the monomania of
boasting of being wealthy, when he was not.

Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a
monomaniac, he was dominated by that malady when he executed the bond now under discussion.
In the interpretative jurisprudence on this kind of incapacity, to wit, lunacy or insanity, it is a rule of
constant application that is not enough that there be more or less probability that a person was in a
state of dementia at a given time, if there is not direct proof that, at the date of the performance of
the act which it is endeavored to invalidate for want of capacity on the part of the executor, the latter
was insane or demented, in other words, that he could not, in the performance of that act, give his
conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians
testified as to extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior
to 1903, and another of them to the year 1908, but none to December 15, 1908, the date of the
execution of the bond sought to be invalidated. the testimony of one of these witnesses shows that
when Villanueva's wife endeavored, in 1908, to have her husband confined in the Hospicio de San
Jose and cared for therein, objection was made by the director of the institution who advised her that
if he entered in that way and lodged in the ward for old men, as soon as he shouted and disturbed
them in their sleep he would have to be locked up in the insane ward; to which Villanueva's wife
replied "that her husband was not exactly insane enough to be placed among the insane." This
same lady, testifying as a witness in this case, stated: that no restrictions had ever been placed upon
her husband's liberty to go wherever he wished and do what he liked; that her husband had property
of his own and was not deprived of its management; that he went out every morning without her
knowing where he went; that she did not know whether he had engaged in the business of signing
bonds, and that, with reference to the one now concerned, she had learned of it only by finding to
note, before mentioned, wherein Arenas invited him to a rendezvous on the benches in front of the
Delmonico Hotel; that she had not endeavored legally to deprive him of the management of his own
real estate which had been inherited by him, although he did not attend to the collection of the rents
and the payment of the land tax, all this being done by her, and she also it was who attended to the
subsistence of the family and to all their needs. Finally, and with direct reference to the point under
discussion, she was asked:

Q. It is not true that, up to the date of his signing this bond, he used to go out of the
house and was on the streets nearly every day? to which she replied:

A. He went where he pleased, he does this even now. He goes to the markets, and buys
provisions and other things. In fact I don't know where he goes go.

Q. From his actions toward others, did he show any indication of not being sane when he
was on the street, according to your opinion?

A. Half of Manila knows him and are informed of this fact and it is very strange that this
should have occurred. If you need witnesses to prove it, there are many people who can
testify in regard to this particular.

The only incorrectness mentioned by this lady is that her husband, when he went to the market,
would return to the house with his pockets full of tomatoes and onions, and when she was asked by
the judge whether he was a man of frugal habits, she replied that, as far as she knew, he had never
squandered any large sum of money; that he had never been engaged in business; that he
supported himself on what she gave him; and that if he had something to count on for his living, it
was the product of his lands.

Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very
evident that it can not be concluded therefrom that, on December 15, 1908, when Villanueva
subscribed the obligation now contested, he did not possess the necessary capacity to give efficient
consent with respect to the bond which he freely executed.

Therefore, the judgment appealed from is affirmed, with the costs of this instance against the
appellant. So ordered.

G.R. No. L-11872 December 1, 1917

DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants,
vs.
JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendant-appellee.

Perfecto Salas Rodriguez for appellants.

Vicente Foz for appellee.

TORRES, J.:

This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of
September 22, 1914, in which the judge of the Seventh Judicial District dismissed the complaint filed
by the plaintiffs and ordered them to keep perpetual silence in regard to the litigated land, and to pay
the costs of the suit.

By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the
Court of First Instance of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the
complaint was amended by being directed against Jose Espiritu in his capacity of his administrator
of the estate of the deceased Luis Espiritu. The plaintiffs alleged that they and their sisters
Concepcion and Paz, all surnamed Mercado, were the children and sole heirs of Margarita Espiritu,
a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving as her
paraphernal property a tract of land of 48 hectares in area situated in the barrio of Panducot,
municipality of Calumpit, Bulacan, and bounded as described in paragraph 4 of the amended
complaint, which hereditary portion had since then been held by the plaintiffs and their sisters,
through their father Wenceslao Mercado, husband of Margarita Espiritu; that, about the year 1910,
said Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded in getting the plaintiffs
Domingo and Josefa Mercado to sign a deed of sale of the land left by their mother, for the sum of
P400, which amount was divided among the two plaintiffs and their sisters Concepcion and Paz,
notwithstanding the fact that said land, according to its assessment, was valued at P3,795; that one-
half of the land in question belonged to Margarita Espiritu, and one-half of this share, that is, one-
fourth of said land , to the plaintiffs, and the other one-fourth, to their two sisters Concepcion and
Paz; that the part of the land belonging to the two plaintiffs could produce 180 cavanes of rice per
annum, at P2.50 per cavan, was equivalent to P450 per annum; and that Luis Espiritu had received
said products from 1901 until the time of his death. Said counsel therefore asked that judgment be
rendered in plaintiffs' favor by holding to be null and void the sale they made of their respective
shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and restore to the
plaintiffs the shares of the land that fell to the latter in the partition of the estate of their deceased
mother Margarita Espiritu, together with the products thereof, uncollected since 1901, or their
equivalent, to wit, P450 per annum, and to pay the costs of the suit.

In due season the defendant administrator answered the aforementioned complaint, denying each
and all of the allegations therein contained, and in special defense alleged that the land, the subject-
matter of the complaint, had an area of only 21 cavanes of seed rice; that, on May 25, 1894, its
owner, the deceased Margarita Espiritu y Yutoc, the plaintiffs' mother, with the due authorization of
her husband Wenceslao Mercado y Arnedo Cruz sold to Luis Espiritu for the sum of P2,000 a
portion of said land, to wit, an area such as is usually required for fifteen cavanes of seed; that
subsequently, on May 14, 1901, Wenceslao Mercado y Arnedo Cruz, the plaintiffs' father, in his
capacity as administrator of the property of his children sold under pacto de retro to the same Luis
Espiritu at the price of P375 the remainder of the said land, to wit, an area covered by six cavanes of
seed to meet the expenses of the maintenance of his (Wenceslao's) children, and this amount being
still insufficient the successively borrowed from said Luis Espiritu other sums of money aggregating
a total of P600; but that later, on May 17,1910, the plaintiffs, alleging themselves to be of legal age,
executed, with their sisters Maria del Consejo and Maria dela Paz, the notarial instrument inserted
integrally in the 5th paragraph of the answer, by which instrument, ratifying said sale under pacto de
retro of the land that had belonged to their mother Margarita Espiritu, effected by their father
Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600, they sold absolutely and
perpetually to said Luis Espiritu, in consideration of P400, the property that had belonged to their
deceased mother and which they acknowledged having received from the aforementioned
purchaser. In this cross-complaint the defendant alleged that the complaint filed by the plaintiffs was
unfounded and malicious, and that thereby losses and damages in the sum of P1,000 had been
caused to the intestate estate of the said Luis Espiritu. He therefore asked that judgment be
rendered by ordering the plaintiffs to keep perpetual silence with respect to the land in litigation and,
besides, to pay said intestate estate P1,000 for losses and damages, and that the costs of the trial
be charged against them.

In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in
special defense alleged that at the time of the execution of the deed of sale inserted in the cross-
complaint the plaintiffs were still minors, and that since they reached their majority the four years
fixed by law for the annulment of said contract had not yet elapsed. They therefore asked that they
be absolved from the defendant's cross-complaint.

After trial and the introduction of evidence by both parties, the court rendered the judgment
aforementioned, to which the plaintiffs excepted and in writing moved for a reopening of the case
and a new trial. This motion was overruled, exception was taken by the petitioners, and the proper
bill of exceptions having been presented, the same was approved and transmitted to the clerk of this
court.

As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17,
1910, on the ground that they were minors when they executed it, the questions submitted to the
decision of this court consist in determining whether it is true that the plaintiffs were then minors and
therefore incapable of selling their property on the date borne by the instrument Exhibit 3; and in
case they then were such, whether a person who is really and truly a minor and, notwithstanding,
attests that he is of legal age, can, after the execution of the deed and within legal period, ask for the
annulment of the instrument executed by him, because of some defect that invalidates the contract,
in accordance with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of
the land sold.

The records shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by
composition with the State, to three parcels of land, adjoining each other, in the sitio of Panducot of
the pueblo of Calumpit, Bulacan, containing altogether an area of 75 hectares, 25 ares, and 59
centares, which facts appear in the title Exhibit D; that, upon Luis Espiritu's death, his said lands
passed by inheritance to his four children named Victoria, Ines, Margarita, and Luis; and that, in the
partition of said decedent's estate, the parcel of land described in the complaint as containing forty-
seven and odd hectares was allotted to the brother and sister Luis and Margarita, in equal shares.
Margarita Espiritu, married to Wenceslao Mercado y Ardeno Cruz, had by this husband five children,
Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, all surnamed Mercado y Espiritu,
who, at the death of their mother in 1896 inherited, by operation of law, one-half of the land
described in the complaint.

The plaintiffs' petition for annulment of the sale and the consequent restitution to them of two-fourths
of the land left by their mother, that is, of one-fourth of all the land described in the complaint, and
which, they stated, amounts to 11 hectares, 86 ares and 37 centares. To this claim the defendant
excepted, alleging that the land in question comprised only an area such as is customarily covered
by 21 cavanes of seed.

It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed
by actual and absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land
now on litigation, or an area such as is usually covered by about 15 cavanes of seed; and that, on
account of the loss of the original of said instrument, which was on the possession of the purchaser
Luis Espiritu, and furthermore because, during the revolution, the protocols or registers of public
documents of the Province of Bulacan were burned, Wenceslao Mercado y Arnedo Cruz, the
widower of the vendor and father of the plaintiffs, executed, at the instance of the interested party
Luis Espiritu, the notarial instrument Exhibit 1, of the date of May 20, 1901, in his own name and
those of his minor children Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, and
therein set forth that it was true that the sale of said portion of land had been made by his
aforementioned wife, then deceased, to Luis Espiritu in 1894.

However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower
Wenceslao Mercado, according to the private document Exhibit 2, pledged or mortgaged to the
same man, Luis Espiritu, for P375, a part, or an area covered by six cavanes of seed, of the land
that had belonged to this vendor's deceased wife, to the said Luis Espiritu and which now forms a
part of the land in question — a transaction which Mercado was obliged to make in order to obtain
funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father, having
died, about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters
Consejo and Paz, declaring themselves to be of legal age and in possession of the required legal
status to contract, executed and subscribed before a notary the document Exhibit 3, on May 17,
1910, in which referring to the previous sale of the land, effected by their deceased mother for the
sum of P2,600 and with her husband's permission and authorization, they sold absolutely and in
perpetuity to Luis Espiritu, for the sum of P400 "as an increase" of the previous purchase price, the
land described in said instrument and situated in Panducot, pueblo of Calumpit, Bulacan, of an area
equal to that usually sown with 21 cavanes of seed bounded on the north by the lands of Flaviano
Abreu and the heirs of Pedro Espiritu, on the east by those of Victoria Espiritu and Ines Espiritu, on
the south by those of Luis Espiritu, and on the west by those of Hermogenes Tan-Toco and by the
Sapang-Maitu stream.

In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that
on the date of its execution they were minors without legal capacity to contract, and for the further
reason that the deceased purchaser Luis Espiritu availed himself of deceit and fraud in obtaining
their consent for the execution of said deed.

As it was proven by the testimony of the clerk of the parochial church of Apalit (plaintiffs were born in
Apalit) that the baptismal register books of that parish pertaining to the years 1890-1891, were lost
or burned, the witness Maria Consejo Mercado recognized and identified the book Exhibit A, which
she testified had been kept and taken care of by her deceased father Wenceslao Mercado, pages
396 and 397 of which bear the attestation that the plaintiff Domingo Mercado was born on August 4,
1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness corroborated the averment
of the plaintiffs' minority, by the personal registration certificate of said Domingo Mercado, of the year
1914, Exhibit C, by which it appears that in 1910 he was only 23 years old, whereby it would also be
appear that Josefa Mercado was 22 years of age in 1910, and therefore, on May 17,1910, when the
instrument of purchase and sale, Exhibit 3, was executed, the plaintiffs must have been,
respectively, 19 and 18 years of age.

The witness Maria Consejo Mercado also testified that after her father's death her brother and
sisters removed to Manila to live there, although her brother Domingo used to reside with his uncle
Luis Espiritu, who took charge of the administration of the property left by his predecessors in
interest; that it was her uncle Luis who got for her brother Domingo the other cedula, Exhibit B,
pertaining to the year 1910, where in it appears that the latter was then already 23 years of age; that
she did not know why her uncle did so; that she and her brother and sisters merely signed the deed
of May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land to
her uncle Luis Espiritu.

The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who
directed the cultivation of the land in litigation. This testimony was corroborated by her sister Victoria
Espiritu, who added that her nephew, the plaintiff Domingo, had lived for some time, she did not
know just how long, under the control of Luis Espiritu.

Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his
sister-in-law Victoria, and which had an area of about 8 hectares less than that of the land allotted to
the aforementioned Luis and Margarita produced for his wife and his sister-in-law Victoria a net and
minimum yield of 507 cavanes in 1907, in spite of its being high land and of inferior quality, as
compared with the land in dispute, and that its yield was still larger in 1914, when the said two
sisters' share was 764 cavanes.

Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the
defendant. He testified that this deed was drawn up by him at the request of the plaintiff Josefa
Mercado; that the grantors of the instrument assured him that they were all of legal age; that said
document was signed by the plaintiffs and the other contracting parties, after it had been read to
them and had been translated into the Pampangan dialect for those of them who did not understand
Spanish. On cross-examination, witness added that ever since he was 18 years of age and began to
court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she had
not yet commenced to attend social gatherings, and that all this took place about the year 1898, for
witness said that he was then [at the time of his testimony, 1914,] 34 years of age.

Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter,
testified that Espiritu's land contained an area of 84 cavanes, and after its owner's death, was under
witness' administration during to harvest two harvest seasons; that the products yielded by a portion
of this land, to wit, an area such as is sown by about 15 cavanes of seed, had been, since 1894,
utilized by Luis Espiritu, by reason of his having acquired the land; and that, after Margarita Espiritu's
death, her husband Wenceslao Mercado took possession of another portion of the land, containing
an area of six cavanes of seed and which had been left by this deceased, and that he held same
until 1901, when he conveyed it to Luis Espiritu. lawphi1.net

The defendant-administrator, Jose Espiritu, son of the deceased Luis Espiritu, testified that the
plaintiff Domingo Mercado used to live off and on in the house of his deceased father, about the year
1909 or 1910, and used to go back and forth between his father's house and those of his other
relatives. He denied that his father had at any time administered the property belonging to the
Mercado brother and sisters.

In rebuttal, Antonio Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediate
in several transactions in connection with a piece of land belonging to Margarita Espiritu. When
shown the deed of purchase and sale Exhibit 1, he stated that he was not acquainted with its
contents. This same witness also testified that he mediated in a transaction had between Wenceslao
Mercado and Luis Espiritu (he did not remember the year), in which the former sold to the latter a
parcel of land situated in Panducot. He stated that as he was a witness of the deed of sale he could
identify this instrument were it exhibited to him; but he did not do so, for no instrument whatever was
presented to him for identification. The transaction mentioned must have concerned either the
ratification of the sale of the land of 15 cavanes, in 1901, attested in Exhibit 1, or the mortgage or
pledge of the other parcel of 6 cavanes, given on May 14, 1901, by Wenceslao Mercado to Luis
Espiritu, as may be seen by the private document Exhibit 2. In rebuttal, the plaintiff Josefa Mercado
denied having gone to the house of the notary Tanjutco for the purpose of requesting him to draw up
any document whatever. She stated that she saw the document Exhibit 3 for the first time in the
house of her uncle Luis Espiritu on the day she signed it, on which occasion and while said
document was being signed said notary was not present, nor were the witnesses thereto whose
names appear therein; and that she went to her said uncle's house, because he had sent for her, as
well as her brother and sisters, sending a carromata to fetch them. Victoria Espiritu denied ever
having been in the house of her brother. Luis Espiritu in company with the plaintiffs, for the purpose
of giving her consent to the execution of any deed in behalf of her brother.

The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis
Espiritu employed fraud, deceit, violence, or intimidation, in order to effect the sale mentioned in the
document Exhibit 3, executed on May 17, 1910. In this document the vendors, the brother and the
sisters Domingo, Maria del Consejo, Paz and, Josefa surnamed Mercado y Espiritu, attested the
certainty of the previous sale which their mother, during her lifetime, had made in behalf of said
purchaser Luis Espiritu, her brother with the consent of her husband Wenceslao Mercado, father of
the vendors of the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan;
and in consideration of the fact that the said vendor Luis Espiritu paid them, as an increase, the sum
of P400, by virtue of the contract made with him, they declare having sold to him absolutely and in
perpetuity said parcel of the land, waive and thenceforth any and all rights they may have, inasmuch
as said sum constitutes the just price of the property.

So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel
or portion of land that would contain 15 cavanes of seed rice made by the vendors' mother in favor of
the purchaser Luis Espiritu, their uncle, and likewise an acknowledgment of the contract of pledge or
mortgage of the remainder of said land, an area of six cavanes, made with the same purchaser, at
an increase of P400 over the price of P2,600, making an aggregate sum of P3,000, decomposed as
follows: P2,000, collected during her lifetime, by the vendors' father; and the said increase of P400,
collected by the plaintiffs.

In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to
her brother Luis the parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs'
widowed father mortgaged or pledged the remaining parcel or portion of 6 cavanes of seed to her
brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So it is that the notarial instrument Exhibit 3,
which was assailed by the plaintiffs, recognized the validity of the previous contracts, and the totality
of the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely and in
perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the
record that this last document was false and simulated on account of the employment of any
violence, intimidation, fraud, or deceit, in the procuring of the consent of the vendors who executed
it.

Considering the relation that exists between the document Exhibit 3 and those of previous dates,
Exhibits 1 and 2, and taking into the account the relationship between the contracting parties, and
also the general custom that prevails in many provinces of these Islands for the vendor or debtor to
obtain an increase in the price of the sale or of the pledge, or an increase in the amount loaned,
without proof to the contrary, it would be improper and illegal to hold, in view of the facts
hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to forge or
simulate the document Exhibit 3 inasmuch as, since May, 1894, he has held in the capacity of owner
by virtue of a prior acquisition, the parcel of land of 15 cavanes of seed, and likewise, since May,
1901, according to the contract of mortgage or pledge, the parcel of 6 cavanes, or the remainder of
the total area of 21 cavanes.
So that Luis Espiritu was, during his lifetime, and now, after his death, his testate or intestate estate
is in lawful possession of the parcel of land situated in Panducot that contains 21 cavanes of seed,
by virtue of the title of conveyance of ownership of the land measuring 15 cavanes, and, in
consequence of the contract of pledge or mortgage in security for the sum of P600, is likewise in
lawful possession of the remainder of the land, or an area containing 6 cavanes of seed.

The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership
was conveyed to the purchaser by means of a singular title of purchase and sale; and as to the other
portion of 6 cavanes of seed, they could have redeemed it before May 17, 1910, upon the payment
or the return of the sum which their deceased father Wenceslao Mercado had, during his lifetime,
received as a loan under security of the pledged property; but, after the execution of the document
Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said parcel of 6 cavanes. It is
therefore a rash venture to attempt to recover this latter parcel by means of the contract of final and
absolute sale, set forth in the deed Exhibit 3.

Moreover, the notarial document Exhibit 1, are regards the statements made therein, is of the nature
of a public document and is evidence of the fact which gave rise to its execution and of the date of
the latter, even against a third person and his predecessors in interest such as are the plaintiffs.
(Civ. Code, art. 1218.)

The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita
Espiritu sold said parcel of land which she inherited from her father, of an area of about "15 cavanes
of seed," to her brother Luis Espiritu, by means of an instrument executed by her on May 25,1894 —
an instrument that disappeared or was burned — and likewise recognizing that the protocols and
register books belonging to the Province of Bulacan were destroyed as a result of the past
revolution, at the request of his brother-in-law Luis Espiritu he had no objection to give the testimony
recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so doing
he acted as the plaintiffs' legitimate father in the exercise of his parental authority, inasmuch as he
had personal knowledge of said sale, he himself being the husband who authorized said
conveyance, notwithstanding that his testimony affected his children's interest and prejudiced his
own, as the owner of any fruits that might be produced by said real property.

The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the
plaintiffs, Consejo Mercado, and as the record shows no evidence whatever that this document is
false, and it does not appear to have been assailed as such, and as it was signed by the plaintiffs'
father, there is no legal ground or well-founded reason why it should be rejected. It was therefore
properly admitted as evidence of the certainty of the facts therein set forth.

The principal defect attributed by the plaintiffs to the document Exhibit 3 consists in that, on the date
of May 17, 1910, when it was executed that they signed it, they were minors, that is, they had not yet
attained the age of 21 years fixed by Act No. 1891, though no evidence appears in the record that
the plaintiffs Josefa and Domingo Mercado were in fact minors, for no certified copies were
presented of their baptismal certificates, nor did the plaintiffs adduce any supplemental evidence
whatever to prove that Domingo was actually 19 and Josefa 18 years of age when they signed the
document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A, notwithstanding the
testimony of the plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of births
of the said Domingo and Josefa.

However, even in the doubt whether they certainly were of legal age on the date referred to, it
cannot be gainsaid that in the document Exhibit 3 they stated that they were of legal age at the time
they executed and signed it, and on that account the sale mentioned in said notarial deed Exhibit 3
is perfectly valid — a sale that is considered as limited solely to the parcel of land of 6 cavanes of
seed, pledged by the deceased father of the plaintiffs in security for P600 received by him as a loan
from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes had been lawfully
sold by its original owner, the plaintiffs' mother.

The courts, in their interpretation of the law, have laid down the rule that the sale of real estate,
made by minors who pretend to be of legal age, when in fact they are not, is valid, and they will not
be permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to
have them annulled in pursuance of the provisions of Law 6, title 19, of the 6th Partida; and the
judgment that holds such a sale to be valid and absolves the purchaser from the complaint filed
against him does not violate the laws relative to the sale of minors' property, nor the juridical rules
established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860,
July 11, 1868, and March 1, 1875.) itc@alf

With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis
Espiritu who took out Domingo Mercado's personal registration certificate on April 13, 1910, causing
the age of 23 years to be entered therein in order to corroborate the date of the notarial instrument of
May 17th of the same year; and the supposition that he did, would also allow it to be supposed, in
order to show the propriety of the claim, that the cedula Exhibit C was taken out on February 14,
1914, where in it is recorded that Domingo Mercado was on that date 23 years of age, for both these
facts are not proved; neither was any proof adduced against the statement made by the plaintiffs
Domingo and Josefa in the notarial instrument Exhibit 3, that, on the date when they executed it,
they were already of legal age, and, besides the annotation contained in the copybook Exhibit A, no
supplemental proof of their true ages was introduced.

Aside from the foregoing, from a careful examination of the record in this case, it cannot be
concluded that the plaintiffs, who claim to have minors when they executed the notarial instrument
Exhibit 3, have suffered positive and actual losses and damages in their rights and interests as a
result of the execution of said document, inasmuch as the sale effected by the plaintiffs' mother,
Margarita Espiritu, in May, 1894, of the greater part of the land of 21 cavanes of seed, did not
occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the document
Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to
secure the loan of the P375 furnished by Luis Espiritu and which was subsequently increased to
P600 so as to provide for certain engagements or perhaps to meet the needs of his children, the
plaintiff; and therefore, to judge from the statements made by their father himself, they received
through him, in exchange for the land of 6 cavanes of seed, which passed into the possession of the
creditor Luis Espiritu, the benefit which must have accrued to them from the sums of money received
as loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs received
and divided between themselves the sum of P400, which sum, added to that P2,000 received by
Margarita Espiritu, and to that of the P600 collected by Wenceslao Mercado, widower of the latter
and father of the plaintiffs, makes all together the sum of P3,000, the amount paid by the purchaser
as the price of all the land containing 21 cavanes of seed, and is the just price of the property, was
not impugned, and, consequently, should be considered as equivalent to, and compensatory for, the
true value of said land.

For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been
refuted, and deeming said judgment to be in accordance with law and the evidence of record, we
should, and do hereby, affirm the same, with costs against the appellants. So ordered.

Arellano, C. J., Johnson, Street, and Malcolm, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I concur.

But in order to avoid misunderstanding, I think it well to indicate that the general statement, in the
prevailing opinion to the effect that the making of false representations as to his age by an infant
executing a contract will preclude him from disaffirming the contract or setting up the defense of
infancy, must be understood as limited to cases wherein, on account of the minor's representations
as to his majority, and because of his near approach thereto, the other party had good reason to
believe, and did in fact believe the minor capable of contracting.

The doctrine set forth in the Partidas, relied upon by the supreme court of Spain in the cases cited in
the prevailing opinion, is substantially similar to the doctrine of estoppel as applied in like instances
by many of the courts in the United States.

For the purposes of convenient comparison, I here insert some citations of authority, Spanish and
American, recognizing the limitations upon the general doctrine to which I am inviting attention at this
time; and in this connection it is worthy of note that the courts of the United States look with rather
less favor than the supreme court of Spain upon the application of the doctrine, doubtless because
the cases wherein it may properly be applied, are much less likely to occur in a jurisdiction where
majority is reached at the age of 21 than a jurisdiction wherein majority is not ordinarily attained until
the infant reaches the age of 25.

Ley 6, tit. 19, Partida 6. is, in part, as follows:

If he who is minor (1) deceitfully says or sets forth in an instrument that he is over twenty-five
years of age, and this assertion is believed by another person who takes him to be of about
that age, (2) in an action at law he should be deemed to be of the age he asserted, and
should no (3) afterwards be released from liability on the plea that he was not of said age
when he assumed the obligation. The reason for this is that the law helps the deceived and
not the deceivers.

In the glossary to these provisions of the Partidas by Gregorio Lopez, I find the following:

(1) De tal tiempo. Nota bene hoc verbum, nam si appareret ex aspectu eum esse minorem,
tunc adversarius non potest dicere se deceptum; imo tam ipse, quam minor videntur esse in
dolo, quo casu competit minori restitutio, quia facta doli compensatione, perinde ast ac si
nullus fuiset in dolo, et ideo datur restitutio; et quia scienti dolus non infertur, l. 1. D. de act.
empt. secundum Cyn. Alberic et Salic. in l. 3. C. si minor se major. dixer. adde Albericum
 tenentem, quabndo per aspectum a liter constaret, in authent. sacramenta puberum, col. 3.
C. si advers vendit.

(2) Engoñosamente. Adde 1. 2. et 3. C. si minor se major. dixer. Et adverte nam per istam
legem Partitarum, que non distinguit, an adultus, vel pupillus talem assertionem faciat,
videtur comprobari dictum Guillielm. de Cun. de quo per Paul. de Castr. in 1. qui jurasse. in
princ. D. de jurejur. quod si pupillus proximus pubertari juret, cum contrahit, se esse
puberem, et postea etiam juret, quod non veniet contra contractum quod habebit locum
dispositio authenticae sacramenta puberum, sicut si esset pubes: et cum isto dicto transit ibi
Paul. de Cast. multum commendans, dicens, se alibi non legisse; si tamen teneamus illam
opinionem, quod etiam pupillus doli capax obligatur ex juramento, non esset ita miranda
dicat, decissio; vide per Alexand. in dict. 1. qui jurasse, in princ. Item lex ista Partitarum
expresse sentit de adulto, non de pupillo, cum superius dixit, que paresciere de tal tiempo:
Doctores etiam intelligunt de adulto 11. dict. tit. C. si minor. se major. dixer. et patet ex 11.
illius tituli. Quid autem dicemus in dubio, cum non constat de dolo minoris? Azon. in summa
illius tit. in fin. Cynus tamen, et alli, tenent oppositum, quia dolus non praesumitur, nisi
probetur, 1. quotiens, s., qui dolo, D. de probat. Et hoc etiam vult ista lex Partitarum, cum
dicit, si lo faze engoñosamente: et ita tenent Alberic. et Salicet. in dict. 1. 3. ubi etiam Bart. in
fin. Si autem minor sui facilitate asserat se mojorem, et ita juret, tunc distingue, ut habetur
dict. 1. 3 quia aut juravit verbo tenus, et tunc non restituitur, nisi per instrumentum seu
scripturam probet se minorem; et si juravit corporaliter, nullo modo restituitur, ut ibi; et per
quae instrumenta probentur, cum verbo tenus juravit, vide per Specul. tit. de restit, in integr.
s. quis autem, col. 4. vers. sed cujusmodi erit scriptura, ubi etiam vide per Speculatorem
aliquas notabiles quaestiones in ista materia, in col. 5. videlicet, an praejudicet sibi minor ex
tali juramento in aliis contractibus, et tenet, quod non; et tenet glossa finalis in 1. de aetate,
D. de minor. in fin. gloss. vide ibi per Speculat. ubi etiam de aliis in ista materia.

In the decision of the supreme court of Spain dated the 27th of April, 1860, I find an excellent
illustration of the conditions under which that court applied the doctrine, as appears from the
following resolution therein set forth.

Sales of real estate made by minors are valid when the latter pretend to be twenty-five years
of age and, due to the circumstances that they are nearly of that age, are married, or have
administration of their property, or on account of other special circumstances affecting them,
the other parties to the contract believe them to be of legal age.

With these citations compare the general doctrine in the United States as set forth in 22 Cyc. (p.
610), supported by numerous citations of authority.

Estoppel to disaffirm — (I) In General. — The doctrine of estoppel not being as a general
rule applicable to infants, the court will not readily hold that his acts during infancy have
created an estoppel against him to disaffirm his contracts. Certainly the infant cannot be
estopped by the acts or admissions of other persons.

(II) False representations as to age. — According to some authorities the fact that an infant
at the time of entering into a contract falsely represented to the person with whom he dealt
that he had attained the age of majority does not give any validity to the contract or estop the
infant from disaffirming the same or setting up the defense of infancy against the
enforcement of any rights thereunder; but there is also authority for the view that such false
representations will create an estoppel against the infant, and under the statutes of some
states no contract can be disaffirmed where, on account of the minor's representations as to
his majority, the other party had good reason to believe the minor capable of contracting.
 Where the infant has made no representations whatever as to his age, the mere fact that the
person with whom he dealt believed him to be of age, even though his belief was warranted
by the infant's appearance and the surrounding circumstances, and the infant knew of such
belief, will not render the contract valid or estop the infant to disaffirm.

Young v Tecson

G.R. No. L-27710 January 30, 1928

ISIDRO BAMBALAN Y PRADO, plaintiff-appellant,

vs.
GERMAN MARAMBA and GENOVEVA MUERONG, defendants-appellants.

Pedro C. Quinto for plaintiff-appellant.

Turner, Rheberg and Sanchez for defendants-appellants.

ROMUALDEZ, J.:

The defendants admit in their amended answer those paragraphs of the complaint wherein it is
alleged that Isidro Bambalan y Colcotura was the owner, with Torrens title, of the land here in
question and that the plaintiff is the sole and universal heir of the said deceased Isidro Bambalan y
Colcotura, as regards the said land. This being so, the fundamental question to be resolved in this
case is whether or not the plaintiff sold the land in question to the defendants.

The defendants affirm they did and as proof of such transfer present document Exhibit 1, dated July
17, 1922. The plaintiff asserts that while it is true that he signed said document, yet he did so by
intimidation made upon his mother Paula Prado by the defendant Genoveva Muerong, who
threatened the former with imprisonment. While the evidence on this particular point does not
decisively support the plaintiff's allegation, this document, however, is vitiated to the extent of being
void as regards the said plaintiff, for the reason that the latter, at the time he signed it, was a minor,
which is clearly shown by the record and it does not appear that it was his real intention to sell the
land in question.

What is deduced from the record is, that his mother Paula Prado and the latter's second husband
Vicente Lagera, having received a certain sum of money by way of a loan from Genoveva Muerong
in 1915 which, according to Exhibit 3, was P200 and according to the testimony of Paula Prado, was
P150, and Genoveva Muerong having learned later that the land within which was included that
described in said Exhibit 3, had a Torrens title issued in favor of the plaintiff's father, of which the
latter is the only heir and caused the plaintiff to sign a conveyance of the land.

At any rate, even supposing that the document in question, Exhibit 1, embodies all of the requisites
prescribed by law for its efficacy, yet it does not, according to the provisions of section 50 of Act No.
496, bind the land and would only be a valid contract between the parties and as evidence of
authority to the register of deeds to make the proper registration, inasmuch as it is the registration
that gives validity to the transfer. Therefore, the defendants, by virtue of the document Exhibit 1
alone, did not acquire any right to the property sold as much less, if it is taken into consideration, the
vendor Isidro Bambalan y Prado, the herein plaintiff, was a minor.

As regards this minority, the doctrine laid down in the case of Mercado and Mercado vs. Espiritu (37
Phil., 215), wherein the minor was held to be estopped from contesting the contract executed by him
pretending to be age, is not applicable herein. In the case now before us the plaintiff did not pretend
to be of age; his minority was well known to the purchaser, the defendant, who was the one who
purchased the plaintiff's first cedula used in the acknowledgment of the document.

In regard to the amount of money that the defendants allege to have given the plaintiff and her son in
1992 as the price of the land, the preponderance of evidence shows that no amount was given by
the defendants to the alleged vendors in said year, but that the sum of P663.40, which appears in
the document Exhibit 1, is arrived at, approximately, by taking the P150 received by Paula Prado
and her husband in 1915 and adding thereto interest at the rate of 50 per cent annum, then agreed
upon, or P75 a year for seven years up to July 31, 1922, the sate of Exhibit 1.

The damages claimed by the plaintiff have not been sufficiently proven, because the witness Paula
Prado was the only one who testified thereto, whose testimony was contradicted by that of the
defendant Genoveva Muerong who, moreover, asserts that she possesses about half of the land in
question. There are, therefore, not sufficient data in the record to award the damages claimed by the
plaintiff.

In view of the foregoing, the dispositive part of the decision appealed from is hereby affirmed,
without any express findings as to the costs in this instance. So ordered.

G.R. No. L-1720 March 4, 1950

SIA SUAN and GAW CHIAO, petitioners,

vs.
RAMON ALCANTARA, respondent.

Antonio Barredo for petitioners.

Zosimo D. Tanalega for respondents.

PARAS, J.:

On August 3, 1931, a deed of sale was executed by Rufino Alcantara and his sons Damaso Alcantara and
Ramon Alcantara conveying to Sia Suan five parcels of land. Ramon Alcantara was then 17 years, 10
months and 22 days old. On August 27, 1931, Gaw Chiao (husband of Sia Suan) received a letter from
Francisco Alfonso, attorney of Ramon Alcantara, informing Gaw Chiao that Ramon Alcantara was a
minor and accordingly disavowing the contract. After being contacted by Gaw Chiao, however, Ramon
Alcantara executed an affidavit in the office of Jose Gomez, attorney of Gaw Chiao, wherein Ramon
Alcantara ratified the deed of sale. On said occasion Ramon Alcantara received from Gaw Chiao the sum
of P500. In the meantime, Sia Suan sold one of the lots to Nicolas Azores from whom Antonio Azores
inherited the same.

On August 8, 1940, an action was instituted by Ramon Alcantara in the Court of First Instance of Laguna
for the annulment of the deed of sale as regards his undivided share in the two parcels of land covered
by certificates of title Nos. 751 and 752 of Laguna. Said action was against Sia Suan and her husband
Gaw Chiao, Antonio, Azores, Damaso Alcantara and Rufino Alcantara (the latter two being, respectively,
the brother and father of Ramon Alcantara appealed to the Court of Appealed which reversed the
decision of the trial court, on the ground that the deed of sale is not binding against Ramon Alcantara in
view of his minority on the date of its execution, and accordingly sentenced Sia Suan to pay to Ramon
Alcantara the sum of P1,750, with legal interest from December 17, 1931, in lieu of his share in the lot
sold to Antonio Azores (who was absolved from the complaint), and to reconvey to Ramon Alcantara an
undivided one-fourth interest in the lot originally covered by certificate of title NO. 752 of Laguna plus
the cost of the suit. From this judgment Sia Suan and Gaw Chiao have come to us on appeal
by certiorari.

It is undeniable that the deed of sale signed by the appellee, Ramon Alcantara, On August 3, 1931,
showed that he, like his co-signers (father and brother), was then of legal age. It is not pretend and
there is nothing to indicate that the appellants did not believe and rely on such recital of fact. This
conclusion is decisive and very obvious in the decision of the Court of Appeals It is true that in the
resolution on the for reconsideration, the Court of Appeals remarked that "The fact that when informed
of appellant's minority, the appellees too no steps for nine years to protect their interest beyond
requiring the appellant to execute a ratification of the sale while still a minor, strongly indicates that the
appellees knew of his minority when the deed of sale was executed." But the feeble insinuation is
sufficiently negative by the following positive pronouncements of the Court of Appeals as well in said
resolution as in the decision.

As to the complaint that the defendant is guilty of laches, suffice it to say that the appellees were
informed of his minority within one (1) month after the transaction was completed. (Resolution.)

Finally, the appellees were equally negligent in not taking any action to protect their interest form and
after August 27, 1931, when they were notified in writing of appellant's minority. (Resolution.)

. . . The fact remains that the appellees were advised within the month that appellant was a minor,
through the letter of Attorney Alfonso (Exhibit 1) informing appellees of his client's desire to disaffirm
the contract . . . (Decision.)

The purchaser having been apprised of incapacity of his vendor shortly after the contract was made, the
delay in bringing the action of annulment will not serve to bar it unless the period fixed by the statute of
limitations expired before the filing of the complaint. . . . (Decision.)

In support of the contend that the deed of sale is binding on the appellee, counsel for the appellants
invokes the decision in Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein this court held:

The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made
by minors who pretend to be of legal age, when it fact they are not, is valid, and they will not be
permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to have
them annulled in pursuance of the provisions of Law 6 title 19, of the 6th Partida; and the judgment that
holds such a sale to valid and absolves the purchaser from the complaint filed against him does not
violate the laws relative to the sale of minors' property, nor the juridical rules established in consonance
therewith. (Decisions of the Supreme Court of Spain, of April 27, 1840, July 11, 1868, and March 1,
1875.)

The Court of Appeals has refused to apply this doctrine on the ground that the appellants did not
actually pay any amount in cash to the appellee and therefore did not suffer any detriment by reason of
the deed of sale, it being stipulated that the consideration therefore was a pre-existing indebtedness of
appellee's father, Rufino Alcantara. We are of the opinion that the Court of Appeals erred. In the first
place, in the case cited, the consideration for sale consisted in greater part of pre-existing obligation. In
the second place, under the doctrine, to bind a minor who represents himself to be of legal age, it is not
necessary for his vendee to actually part with cash, as long as the contract is supported by a valid
consideration. Since appellee's conveyance to the appellants was admittedly for and in virtue of a pre-
existing indebtedness (unquestionably a valid consideration), it should produce its full force and effect in
the absence of any other vice that may legally invalidate the same. It is not here claimed that the deed
of sale is null and void on any ground other than the appellee's minority. Appellee's contract has
become fully efficacious as a contract executed by parties with full legal capacity.

The circumstance that, about one month after the date of the conveyance, the appellee informed the
appellants of his minority, is of no moment, because appellee's previous misrepresentation had already
estopped him from disavowing the contract. Said belated information merely leads to the inference that
the appellants in fact did not know that the appellee was a minor on the date of the contract, and
somewhat emphasizes appellee's had faith, when it is borne in mind that no sooner had he given said
information than he ratified his deed of sale upon receiving from the appellants the sum of P500.

Counsel for the appellees argues that the appellants could not have been misled as to the real age of the
appellee because they were free to make the necessary investigation. The suggestion, while perhaps
practicable, is conspicuously unbusinesslike and beside the point, because the findings of the Court of
Appeals do not show that the appellants knew or could suspected appellee's minority.

The Court of Appeals seems to be of the opinion that the letter written by the appellee informing the
appellants of his minority constituted an effective disaffirmance of the sale, and that although the
choice to disaffirm will not by itself avoid the contract until the courts adjudge the agreement to be
invalid, said notice shielded the appellee from laches and consequent estoppel. This position is
untenable since the effect of estoppel in proper cases is unaffected by the promptness with which a
notice to disaffirm is made.

The appealed decision of the Court of Appeals is hereby reversed and the appellants absolved from the
complaint, with costs against the appellee, Ramon Alcantara. So ordered.

Ozaeta, Tuason, Montemayor and Torres, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result not upon the grounds stated in the majority opinion but for the following reasons:
The deed of sale executed by Ramon Alcantara on 3 August 1931 conveying to Sia Suan five parcels of
land is null and void insofar as the interest, share, or participation of Ramon Alcantara in two parcels of
land is concerned, because on the date of sale he was 17 years, 10 months and 22 days old only.
Consent being one of the essential requisites for the execution of a valid contract, a minor, such as
Ramon Alcantara was, could not give his consent thereof. The only misrepresentation as to his age, if
any, was the statement appearing in the instrument that he was of age. On 27 August 1931, or 24 days
after the deed was executed, Gaw Chiao, the husband of the vendee Sia Suan, was advised by Atty.
Francisco Alfonso of the fact that his client Ramon Alcantara was a minor. The fact that the latter, for
and in consideration of P500, executed an affidavit, whereby he ratified the deed of sale, is of no
moment. He was still minor. The majority opinion invokes the rule laid down in the case of Mercado et
al. vs. Espiritu, 37 Phil., 215. The rule laid down by this Court in that case is based on three judgments
rendered by the Supreme Court of Spain on 27 April 1960, 11 July 1868, and 1 March 1875. In these
decisions the Supreme Court of Spain applied Law 6, Title 19, of the 6th Partida which expressly
provides:

"Diziendo o ortogando el que fuese menor, que era mayor de XXV años, si ouiesse persona que
paresciesse de tal tiempo, si lo faze enganosamente, valdria el pleyto que assi fuere fecho con el e non
deue ser desatado despues, como quier que non era de edad quando lo fizo: esto es, porque las leyes
ayudan a los enganados, e non a los enganadores. . . ." (Alcubilla, Codigos Antigous de España, p. 613.)

The contract of sale involved in the case of Mercado vs. Espiritu, supra, was executed by the minors on
17 May 1910. The Law in force on this last-mentioned date was not Las Siete Partidas, 1 which was the
in force at the time the cases decided by the Supreme Court of Spain referred to, but the Civil Code
which took effect in the Philippines on 8 December 1889. As already stated, the Civil Code requires the
consent of both parties for the valid execution of a contract (art. 1261, Civil Code). As a minor cannot
give his consent, the contract made or executed by him has no validity and legal effect. There is no
provision in the Civil Code similar to that of Law 6, Title 19, of the 6th Partida which is equivalent to the
common law principle of estoppel. If there be an express provision in the Civil Code similar law 6, Title
19, of the 6th Partida, I would agree to the reasoning of the majority. The absence of such provision in
the Civil Code is fatal to the validity of the contract executed by a minor. It would be illogical to uphold
the validity of a contract on the ground of estoppel, because if the contract executed by a minor is null
and void for lack of consent and produces no legal effect, how could such a minor be bound by
misrepresentation about his age? If he could not be bound by a direct act, such as the execution of a
deed of sale, how could he be bound by an indirect act, such as misrepresentation as to his age? The
rule laid down in Young vs. Tecson, 39 O. G. 953, in my opinion, is the correct one.

Nevertheless, as the action in this case was brought on 8 August 1940, the same was barred, because it
was not brought within four (4) years after the minor had become of age, pursuant to article 1301 of the
Civil Code. Ramon Alcantara became of age sometime in September 1934.

Moran, C.J. and Bengzon, J., concur.

PABLO, M., disidente:

No creo que Ramon Alcantara este en estoppel al querer recuperar su participacion en los lotes que el
cedio a Sia Suan en la escritura de 3 de Agosto de 1931. Las circunstancias que concurrieron en su
otorgamiento demostraran que es insostenible esa conclusion. La acreedora era Sia Suan, y el deudor,
Rufino Alcantara por transactiones que tuvo con ella en el negocio de copra. Al fallecimiento de la
esposa de Rufino, alguien se habra percatado de la dificultad de cobrar el credito porque Rufino no tenia
mas que tres lotes de su exclusiva propiedad y dos lotes, como bienes gananciales. Ramon, uno de los
herederos, era un menor de edad. Por eso, se procuro el otorgamiento de tal escritura, vendiendo el
padre (Rufino) y sus dos hijos (Damaso y Ramon) cinco lotes amillarados en P19,592.85 por P2,500; que
en realidad no fue mas que una dacion en pago de la deuda. Si no se otorgaba tal escritura, la acreedora
tenia necesidad de utilizar un proceso largo de abintestato para obtener el pago de la deuda en cuanto
afecte, si podia afectar, los bienes gananciales de Rufino Alcantara y su difunta esposa, o de tutela para
que alguien actue en lugar del menor Ramon. El procedimiento mas corto y menos costoso entonces era
hacer que el menos apareciera como con edad competente para otorgar la escritura de venta. Y asi
sucedio: se otorgo la escritura. El menor no recibio ni un solo centimo. Con la herencia que habia de
recibier de su difunta madre, pago la deuda de su padre.

Despues de notificada Sia Suan de la reclamacion de nulidad del documento, por gestion de Gaw Chiao,
Ramon Alcantara siendo menor de edad aun, firmo un affidavit ratificando la venta en la oficina del
abogado de Gaw Chiao. Esta actuacion de Gar Chiao, marido de Sia Suan, denuncia que no fue Ramon el
que les hacia creer que era mayor de edad y que oficiosa y voluntariamente haya solicitado el
otorgamiento de la escritura de venta. Si Gaw Chiao, marido de Sia Suan, fue el que gestiono el
otorgamientodel affidavit de ratificacion, ?por que no debemos concluir que el fue quien gestiono a
indicacion tal vez de algun abogado, que Ramon Alcantara estampara su firma en la escritura de 3 de
agosto de 1931? Pero la firma de un menor no vale nada; debia aparecer entonces que Ramon era de
mayor edad. ¿Por que habia de interesarse el menor en otorgar una escritura de venta de tales
terrenos? ¿No es mas probable que la acreedora o su marido o algun agente haya sido el que se intereso
por que Ramon tomara parte en el otorgamiento de la escritura?

Que beneficio obtuvo el menor en el otorgamiento de la escritura? Nada; en cambio, la acreedora

consiguio ser duena de los cinco lotes a cambio de su credito. ¿Quedaba favorecido el menor al firmas
su affidavit de ratificacion? Tampoco; con todo, Sia Suan reclama que el menor fue quien la indujo a
error. Si alguien engano al alguien, no habra sido Ramon. Tenia que ser la acreedora o alguien que
ayudaba a ella en conseguir el pago del credito; pero no fue, no podia ser el menor.

Teniendo en cuenta todas estas circunstancias, no podemos concluir que Ramon Alcantara haya
inducido a error a Sia Suan. No es aplicable, por tanto, la decision de este Tribunal en Mercado y
Mercado contra Espiritu (37 Jur. Fil., 227); ni la del Tribunal Supremo de Espana, pues en tales casos, el
menor fingio e hizo creer a los compradores que era mayor de edad: no era justo que el que indujo a los
compradores a comprar un terreno desprendiendosedel precio de compra, sea permitido despues
alegar su minoria de edad para anular la actuacion hecha por el. Eso es verdadero estoppel; pero en el
caso presente no lo hay.

Laches es el otro fundamento sobre que descansa la mayoria para revocar la decision apelada. Laches es
medida de equidad, y no es aplicable al caso presente. Solamente debe admitirse como defensa cuando
la aplicacion y hay necesidad de hacer uso de la equidad. No debe aplicarse para fomentar una injusticia
sino para minimizar sus efectos y solamente debe ser utilizada como defensa cuando en la aplicacion de
una ley se comete verdadera injusticia (30 C. J. S., 531). En el caso presente Ramon Alcantara tiene diez
anos de plazo a contar del 3 de Agosto de 1931, dentro del cual puede pedir la anulacion de la venta. Y
la demanda que inicio esta causa se presento dentro de ese plazo; no esta prescrita pues aun la accion
(art. 43, Cod. Proc. Civ.).

Suponiendo que Ramon Alcantara hubiera presentado su demanda antes de la venta de un lote a
Nicolas Azores que sentencia se hubiera dictado? El otorgamiento de una escritura de traspaso de una
cuarta parte de los dos lotes; pero despues de vendido un lote, se ordenaria, como decidio el Tribunal
de Apelacion, el traspaso de la cuarta parte del lote restante y el pago de la cuarta parte del importe en
venta del lote vendido a Ramon. En uno y otro caso no se hace ningun dano a Sia Suan, solamente se le
obliga a traspasar a Ramon la parte que, en herencia de los bienes gananciales dejados por su difunta
madre, le corresponde. No hay daño desproporcionado que en equidad autorica a Sia Suan a invocar la
defensa de laches. Si Sia Suan antes de la presentacion de la demanda, hubiera construido edificios en
los lotes por valor de P3,000,000, demos por caso, tal vez seria de equidad para Sia Suan invocar la
defensa de laches, pues por el silencio de Ramon Alcantara, ella ha hecho mejoras de mucho valor que
con una decision semejante seria perjudicada. El trasparo a Ramon Alcantara de una cuarta parte de
cada uno de los dos lotes pondria a ella en la alternativa de comprar esa cuarta parte de los lotes con
precio excesivo o derribar parte de los edificios construidos. En el caso presente no se le ha puesto en
esa dificil situacion; al contrario, ella estuvo disfrutando de esos dos lotes sin hacer mejoras
extraordinarias, y despues de vendido el segundo lote, utilizo el dinero recibido, y no hay pruebas de
que se haya causado a ella dano por no presentarse la demanda mas temprano.

Voto por la confirmacion de la decision del Tribunal de Apalacion.

G.R. No. L-12471 April 13, 1959

ROSARIO L. DE BRAGANZA, ET AL., petitioners,

vs.
FERNANDO F. DE VILLA ABRILLE, respondent.

Oscar M. Herrera for petitioners.

R. P. Sarandi and F. Valdez Anama for respondents.

BENGZON, J.:

Rosario L. de Braganza and her sons Rodolfo and Guillermo petition for review of the Court of
Appeal's decision whereby they were required solidarily to pay Fernando F. de Villa Abrille the sum
of P10,000 plus 2 % interest from October 30, 1944.

The above petitioners, it appears, received from Villa Abrille, as a loan, on October 30, 1944
P70,000 in Japanese war notes and in consideration thereof, promised in writing (Exhibit A) to pay
him P10,000 "in legal currency of the P. I. two years after the cessation of the present hostilities or
as soon as International Exchange has been established in the Philippines", plus 2 % per annum.

Because payment had not been made, Villa Abrille sued them in March 1949.

In their answer before the Manila court of first Instance, defendants claimed to have received
P40,000 only — instead of P70,000 as plaintiff asserted. They also averred that Guillermo and
Rodolfo were minors when they signed the promissory note Exhibit A. After hearing the parties and
their evidence, said court rendered judgment, which the appellate court affirmed, in the terms above
described.

There can be no question about the responsibility of Mrs. Rosario L. Braganza because the minority
of her consigners note release her from liability; since it is a personal defense of the minors.
However, such defense will benefit her to the extent of the shares for which such minors may be
responsible, (Art. 1148, Civil Code). It is not denied that at the time of signing Exhibit A, Guillermo
and Rodolfo Braganza were minors-16 and 18 respectively. However, the Court of Appeals found
them liable pursuant to the following reasoning:

. . . . These two appellants did not make it appears in the promissory note that they were not
yet of legal age. If they were really to their creditor, they should have appraised him on their
incapacity, and if the former, in spite of the information relative to their age, parted with his
 money, then he should be contended with the consequence of his act. But, that was not the
case. Perhaps defendants in their desire to acquire much needed money, they readily and
willingly signed the promissory note, without disclosing the legal impediment with respect to
Guillermo and Rodolfo. When minor, like in the instant case, pretended to be of legal age, in
fact they were not, they will not later on be permitted to excuse themselves from the
fulfillment of the obligation contracted by them or to have it annulled. (Mercado, et al. vs.
Espiritu, 37 Phil., 215.) [Emphasis Ours.]

We cannot agree to above conclusion. From the minors' failure to disclose their minority in the same
promissory note they signed, it does not follow as a legal proposition, that they will not be permitted
thereafter to assert it. They had no juridical duty to disclose their inability. In fact, according to
Corpuz Juris Secundum, 43 p. 206;

. . . . Some authorities consider that a false representation as to age including a contract as

part of the contract and accordingly hold that it cannot be the basis of an action in tort. Other
authorities hold that such misrepresentation may be the basis of such an action, on the
theory that such misrepresentation is not a part of, and does not grow out of, the contract, or
that the enforcement of liability for such misrepresentation as tort does not constitute an
indirect of enforcing liability on the contract. In order to hold infant liable, however, the fraud
must be actual and not constructure. It has been held that his mere silence when making a
contract as to age does not constitute a fraud which can be made the basis of an action of
decit. (Emphasis Ours.)

The fraud of which an infant may be held liable to one who contracts with him in the belief
that he is of full age must be actual not constructive, and mere failure of the infant to disclose
his age is not sufficient. (27 American Jurisprudence, p. 819.)

The Mecado case1 cited in the decision under review is different because the document signed
therein by the minor specifically stated he was of age; here Exhibit A contained no such statement.
In other words, in the Mercado case, the minor was guilty of active misrepresentation; whereas in
this case, if the minors were guilty at all, which we doubt it is of passive (or constructive)
misrepresentation. Indeed, there is a growing sentiment in favor of limiting the scope of the
application of the Mercado ruling, what with the consideration that the very minority which
incapacitated from contracting should likewise exempt them from the results of misrepresentation.

We hold, on this point, that being minors, Rodolfo and Guillermo Braganza could not be legally
bound by their signatures in Exhibit A.

It is argued, nevertheless, by respondent that inasmuch as this defense was interposed only in 1951,
and inasmuch as Rodolfo reached the age of majority in 1947, it was too late to invoke it because
more than 4 years had elapsed after he had become emancipated upon reaching the age of
majority. The provisions of Article 1301 of the Civil Code are quoted to the effect that "an action to
annul a contract by reason of majority must be filed within 4 years" after the minor has reached
majority age. The parties do not specify the exact date of Rodolfo's birth. It is undenied, however,
that in October 1944, he was 18 years old. On the basis of such datum, it should be held that in
October 1947, he was 21 years old, and in October 1951, he was 25 years old. So that when this
defense was interposed in June 1951, four years had not yet completely elapsed from October 1947.

Furthermore, there is reason to doubt the pertinency of the 4-years period fixed by Article 1301 of
the Civil Code where minority is set up only as a defense to an action, without the minors asking for
any positive relief from the contract. For one thing, they have not filed in this case an action for
annulment.2 They merely interposed an excuse from liability.
Upon the other hand, these minors may not be entirely absolved from monetary responsibility. In
accordance with the provisions of Civil Code, even if their written contact is unenforceable because
of non-age, they shall make restitution to the extent that they have profited by the money they
received. (Art. 1340) There is testimony that the funds delivered to them by Villa Abrille were used
for their support during the Japanese occupation. Such being the case, it is but fair to hold that they
had profited to the extent of the value of such money, which value has been authoritatively
established in the so-called Ballantine Schedule: in October 1944, P40.00 Japanese notes were
equivalent to P1 of current Philippine money.

Wherefore, as the share of these minors was 2/3 of P70,000 of P46,666.66, they should now return
P1,166.67.3Their promise to pay P10,000 in Philippine currency, (Exhibit A) can not be enforced, as
already stated, since they were minors incapable of binding themselves. Their liability, to repeat, is
presently declared without regard of said Exhibit A, but solely in pursuance of Article 1304 of the
Civil Code.

Accordingly, the appealed decision should be modified in the sense that Rosario Braganza shall pay
1/3 of P10,000 i.e., P3,333.334 plus 2% interest from October 1944; and Rodolfo and Guillermo
Braganza shall pay jointly5 to the same creditor the total amount of P1,166.67 plus 6% interest
beginning March 7, 1949, when the complaint was filed. No costs in this instance.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia,
JJ., concur.

INSANITY

G.R. Nos. L-9471 and L-9472 March 13, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
EVARISTO VAQUILAR, defendant-appellant.

William J. Rohde for appellant.

Acting Attorney-General Harvey for appellee.

TRENT, J.:

The appellant, Evaristo Vaquilar, was charged in two separate informations with parricide, in one for
the killing of his wife and in the other for the killing of his daughter. He was sentenced to life
imprisonment, to indemnify the heirs, to the accessory penalties, and to the payment of the costs in
each case. From this judgment he appealed. The two cases have been submitted to this court
together.

The appellant in these two cases was proven to have killed his wife and daughter in the manner
charged and to have wounded other persons with a bolo. The commission of these crimes is not
denied. The defendant did not testify but several witnesses were introduced in his behalf, testifying
that the defendant appeared to them to be insane at and subsequent to the commission of the
crimes. they also testified that he had been complaining of pains in his head and stomach prior to
the killing.

Our attention has been directed to the following testimony: Martin Agustin, witness for the
prosecution, testified that he heard the appellant, his uncle, making a noise, and that he refused into
the house and saw the appellant kill his wife and daughter; that he was cut by the appellant; that
there "were seven, including the small boys and girls who were cut by him;" that he did not know of
any disagreement between the appellant and the two deceased; that on the morning before she was
killed that the appellant had 'felt pains in his head and stomach." The witness further stated that the
appellant's "eyes were very big and red and his sight penetrating" at the time he was killing his wife
and daughter, and that "according to my own eyes as he looked at me he was crazy because if he
was not crazy he would not have killed his family — his wife and child."

Diego Agustin, a witness for the defense, testified that he helped Martin Agustin capture the
appellant; that the appellant "himself used to say before that time he had felt pains in the head and
the stomach;" that at the moment he was cutting those people " he looked like a madman; crazy
because he would cut everybody at random without paying any attention to who it was."

Alejandra Vaquilar, the appellant's sister, testified that her brother had headache and stomach
trouble about five days prior to the commission of the crimes; that "he looked very sad at the time,
but I saw him run downstairs and then he pursued me;" and that "he must have been crazy because
he cut me."

Estanislao Canaria, who was a prisoner confined in the same jail with the appellant, testified that he
had observed the appellant about five months and that sometimes "his head is not all right;" that
"oftentimes since he came to the jail when he is sent for something he goes back he does without
saying anything, even if he comes back he does not say anything at all;" that when the appellant
returns from work he does not say a word; and that about every other night he, the appellant, cries
aloud, saying, "What kind of people are you to me, what are you doing to me, you are beasts."

The health officer who examined the two deceased and the other wounded parties found that the
appellant's wife had five mortal wounds on the head, besides several other wounds on her hands;
and that the daughter's skull was split "through and through from one side to the other." The witness
stated that he made a slight examination of the defendant in the jail and that he did not notice
whether defendant in the jail and that he did not notice whether defendant was suffering from any
mental derangement or not.

There is vast different between an insane person and one who has worked himself up into such a
frenzy of anger that he fails to use reason or good judgment in what he does. Persons who get into a
quarrel of fight seldom, if ever, act naturally during the fight. An extremely angry man, often, if not
always, acts like a madman. The fact that a person acts crazy is not conclusive that he is insane.
The popular meaning of the word "crazy" is not synonymous with the legal terms "insane," "non
compos mentis," "unsound mind," "idiot," or "lunatic." In this case as before indicated, one witness
testified that "according to my own eyes as he looked at me he was crazy because if he was not
crazy he would not have killed his family." That witness' conception of the word "crazy" evidently is
the doing of some act by a person which an ordinarily rational person would not think of doing.
Another witness testified that "he looked like a madman; crazy, because he would cut everybody at
random without paying any attention to who it was." It is not at all unnatural for a murderer, caught in
the act of killing his wife and child, to fly into a passion and strike promiscuously at those who
attempt to capture him. The appellant's sister said "he must have been crazy because he cut me."
This is another illustration of the popular conception of the word "crazy," it being thus used to
describe a person or an act unnatural or out of the ordinary.

The conduct of the appellant after he was confined in jail as described by his fellow prisoner is not
inconsistent with the actions of a sane person. The reflection and remorse which would follow the
commission of such deeds as those committed by the appellant might be sufficient to cause the
person to cry out, "What kind of people are you to me; what are you doing to me; you are beast," and
yet such conduct could not be sufficient to show that the person was insane at the time the deeds
were committed.

In People vs. Mortimer (48 Mich., 37; 11 N. W., 776), the defendant was indicated for an assault with
intent to murder. The defense attempted to prove "a mental condition which would involved no guilt."
The supreme court on appeal in this decision distinguished between passion and insanity as follows:

But passion and insanity are very different things, and whatever indulgence the law may
extend to persons under provocation, it does not treat them as freed from criminal
responsibility. Those who have not lost control of their reason by mental unsoundness are
bound to control their tempers and restrain their persons, and are liable to the law if they do
not. Where persons allow their anger to lead them so far as to make them reckless, the fact
that they have become at last too infuriated to keep them from mischief is merely the result
of not applying restraint in season. There would be no safety for society if people could with
impunity lash themselves into fury, and then to desperate acts of violence. That condition
which springs from undisciplined and unbridled passion is clearly within legal as well as
moral censure and punishment. (People vs. Finley, 38 Mich., 482; Welch vs. Ware, 32 Mich.,
77.)

In People vs. Foy (138 N. Y., 664), the court sad: "The court very properly continued with an
explanation to the jury that 'the heat of passion and feeling produced by motives of anger, hatred, or
revenge, is not insanity. The law holds the doer of the act, under such conditions, responsible for the
crime, because a large share of homicides committed are occasioned by just such motives as these.'
"

The Encyclopedia of Law and Procedure (vol. 12, p. 170), cites many cases on the subject of anger
and emotional insanity and sums up those decisions in the following concise statement:

Although there have been decisions to the contrary, it is now well settled that mere mental
depravity, or moral insanity, so called, which results, not from any disease of mind, but from
a perverted condition of the moral system, where the person is mentally sense, does not
exempt one from responsibility for crimes committed under its influence. Care must be taken
to distinguish between mere moral insanity or mental depravity and irresistable impulse
resulting from disease of the mind.

In the case of United States vs. Carmona (18 Phil. Rep., 62), the defendant was convicted of the
crime of lesiones graves. The defendant's counsel, without raising any question as to the actual
commission of the alleged acts, or the allegation that the accused committed them, confined himself
to the statement, in behalf of his client, that on the night of the crime the defendant was sick with
fever and out of his mind and that in one of his paroxysms he committed the said acts, wounding his
wife and the other members of her family, without any motives whatever. In the decision in that case
this court stated:

In the absence of proof that the defendant had lost his reason or became demented a few
moments prior to or during the perpetration of the crime, it is presumed that he was in a
normal condition of mind. It is improper to conclude that he acted unconsciously, in order to
relieve him from responsibility on the ground of exceptional mental condition, unless his
insanity and absence of will are proven.

Regarding the burden of proof in cases where insanity is pleaded in defense of criminal actions, we
quote as follows from State vs. Bunny (24 S. C., 439; 58 Am. Rep., 262, 265):
 But as the usual condition of men is that of sanity, there is a presumption that the accused is
sane, which certainly in the first instance affords proof of the fact. (State vs. Coleman, 20 S.
C., 454.) If the killing and nothing more appears, this presumption, without other proof upon
the point of sanity, is sufficiently to support a conviction and as the State must prove every
element of the crime charged "beyond a reasonable doubt," it follows that this presumption
affords such proof. This presumption however may be overthrow. It may be shown on the
part of the accused that the criminal intent did not exist at the time the act was committed.
This being exceptional is a defense, and like other defenses must be made out by the party
claiming the benefit of it. "The positive existence of that degree and kind of insanity that shall
work a dispensation to the prisoner in the case of established homicide is a fact to be proved
as it s affirmed by him." (State vs. Stark, 1 Strob., 506.)

What then is necessary to make out this defense? It surely cannot be sufficient merely to
allege insanity to put his sanity "in issue." That is merely a pleading, a denial, and ineffectual
without proof. In order to make not such defense, as it seems to us, sufficient proof must be
shown to overcome in the first place the presumption of sanity and then any other proof that
may be offered.

In the case of State vs. Stickley (41 Iowa, 232), the court said (syllabus):

One who, possession of a sound mind, commits a criminal act under the impulse of passion
or revenge, which way temporarily dethrone reason and for the moment control the will,
cannot nevertheless be shield from the consequences of the act by the plea of insanity.
Insanity will only excuse the commission of a criminal act, when it is made affirmatively to
appear that the person committing it was insane, and that the offense was the direct
consequences of his insanity.

The appellant's conduct, as appears from the record, being consistent with the acts of an enlarged
criminal, and it not having been satisfactorily, shown that he was of unsound mind at the time he
committed the crimes, and the facts charged in each information having been proven, and the
penalty imposed being in accordance with the law, the judgments appealed from are affirmed, with
costs against the appellant.

G.R. No. L-54135 November 21, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
POLICARPIO RAFANAN, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee.

Causapin, Millar & Tutana Law Office for defendant-appellant.

FELICIANO, J.:

Policarpio Rafanan, Jr. appeals from a decision of the then Court of First Instance of Pangasinan
convicting him of the crime of rape and sentencing him to reclusion perpetua, to indemnify
complainant Estelita Ronaya in the amount of P10,000.00 by way of moral damages, and to pay the
costs.

The facts were summarized by the trial court in the following manner:

The prosecution's evidence shows that on February 27, 1976, complainant Estelita Ronaya
who was then only fourteen years old was hired as a househelper by the mother of the
accused, Ines Rafanan alias "Baket Ines" with a salary of P30.00 a month.

The accused Policarpio Rafanan and his family lived with his mother in the same house at
Barangay San Nicholas, Villasis, Pangasinan. Policarpio was then married and had two
children.

On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of
the accused to help in their store which was located in front of their house about six (6)
meters away. Attending to the store at the time was the accused. At 11:00 o'clock in the
evening, the accused called the complainant to help him close the door of the store and as
the latter complied and went near him, he suddenly pulled the complainant inside the store
and said, "Come, let us have sexual intercourse," to which Estelita replied, "I do not like,"
and struggled to free herself and cried. The accused held a bolo measuring 1-1/2 feet
including the handle which he pointed to the throat of the complainant threatening her with
said bolo should she resist. Then, he forced her to lie down on a bamboo bed, removed her
pants and after unfastening the zipper of his own pants, went on top of complainant and
succeeded having carnal knowledge of her inspite of her resistance and struggle. After the
sexual intercourse, the accused cautioned the complainant not to report the matter to her
mother or anybody in the house, otherwise he would kill her.

Because of fear, the complainant did not immediately report the matter and did not leave the
house of the accused that same evening. In fact, she slept in the house of the accused that
evening and the following morning she scrubbed the floor and did her daily routine work in
the house. She only left the house in the evening of March 17, 1976.

Somehow, in the evening of March 17, 1976, the family of the accused learned what
happened the night before in the store between Policarpio and Estelita and a quarrel ensued
among them prompting Estelita Ronaya to go back to her house. When Estelita's mother
confronted her and asked her why she went home that evening, the complainant could not
answer but cried and cried. It was only the following morning on March 18, 1976 that the
complainant told her mother that she was raped by the accused. Upon knowing what
happened to her daughter, the mother Alejandra Ronaya, immediately accompanied her to
the house of Patrolman Bernardo Mairina of the Villasis Police Force who lives in Barrio San
Nicolas, Villasis, Pangasinan. Patrolman Mairina is a cousin of the father of the complainant.
He advised them to proceed to the municipal building while he went to fetch the accused.
The accused was later brought to the police headquarter with the bolo, Exhibit "E", which the
accused allegedly used in threatening the complainant. 1

At arraignment, appellant entered a plea of not guilty. The case then proceeded to trial and in due course of time, the trial court, as already noted,
convicted the appellant.

The instant appeal is anchored on the following:

 Assignment of Errors

1. The lower court erred in basing its decision of conviction of appellant solely on the testimony of the complainant and her mother.

2. The lower court erred in considering the hearsay evidence for the prosecution, "Exhibits B and C".

3. The lower court erred in not believing the testimony of the expert witnesses, as to the mental condition of the accused-appellant at the
time of the alleged commission of the crime of rape.

4. The lower court erred in convicting appellant who at the time of the alleged rape was suffering from insanity. 2

Appellant first assails the credibility of complainant as well as of her mother whose testimonies he contends are contradictory. It is claimed by appellant
that the testimony of complainant on direct examination that she immediately went home after the rape incident, is at variance with her testimony on
cross examination to the effect that she had stayed in the house of appellant until the following day. Complainant, in saying that she left the house of
appellant by herself, is also alleged to have contradicted her mother who stated that she (the mother) went to the store in the evening of 17 March
1979 and brought Estelita home.

The apparently inconsistent statements made by complainant were clarified by her on cross examination. In any case, the inconsistencies related to minor and inconsequential details which do not touch upon the manner in which the
crime had been committed and therefore did not in any way impair the credibility of the complainant. 3

The commission of the came was not seriously disputed by appellant. The testimony of complainant in this respect is clear and convincing:

Fiscal Guillermo:

Q Now, we go back to that time when according to you the accused pulled you from the door and brought you inside the store after you
helped him closed the store. Now, after the accused pulled you from the door and brought you inside the store what happened then?

A "You come and we will have sexual intercourse," he said.

Q And what did you say?

A "I do not like," I said.

Q And what did you do, if any, when you said you do not like to have sexual intercourse with him?

A I struggled and cried.

Q What did the accused do after that?

A He got a knife and pointed it at my throat so I was frightened and he could do what he wanted to do. He was able to do what he wanted
to do.

Q This "kutsilyo" you were referring to or knife, how big is that knife? Will you please demonstrate, if any?

A This length, sir. (Which parties agreed to be about one and one-half [1-1/2] feet long.)

xxx xxx xxx

Fiscal Guillermo:

Q Now, you said that the accused was able to have sexual intercourse with you after he placed the bolo or that knife [at] your throat. Now,
will you please tell the court what did the accused do immediately after placing that bolo your throat and before having sexual intercourse
you?

A He had sexual intercourse with me.

Q What was your wearing apparel that evening?

A I was wearing pants, sir.

Q Aside from the pants, do you have any underwear?

A Yes, sir, I have a panty.

Q Now, before the accused have sexual intercourse with you what, if any, did he do with respect to your pants and your panty?

A He removed them, sir.

Q Now, while he was removing your pants and your panty what, if any, did you do?

A I continued to struggle so that he could not remove my pants but he was stronger that's why he succeeded.

Q Now, after he had removed your panty and your pants or pantsuit what else happened?

A He went on top of me, sir.

Q At the time what was the accused wearing by way of apparel?

A He was wearing pants.

Q When you said he went on top of you after he has removed your pantsuit and your panty, was he still wearing his pants?

A He unbuttoned his pants and unfastened the zipper of his pants.

Q And after he unbuttoned and unfastened his pants what did you see which he opened?

A I saw his penis.

Q Now, you said that after the accused has unzipped his pants and brought out his penis which you saw, he went on top of you. When he
was already on top of you what did you do, if any?

A I struggled.

Q Now, you said that you struggled. What happened then when you struggled against the accused when he was on top of you?

A Since he was stronger, he succeeded doing what he wanted to get.

xxx xxx xxx

COURT:

Alright, what do you mean by he was able to succeed in what he wanted to get?

Fiscal Guillermo:

Considering the condition of the witness, your honor, with tears, may we just be allowed to ask a leading question which is a follow-up
question?

Witness:

A He inserted his private part inside my vagina.

Fiscal Guillermo:

Q Now, when he inserted his private part inside your vagina what did you feel, if any?

A I felt something that came out from his inside.

Q Now, how long, if you remember, did the accused have his penis inside your vagina:?

A Around five minutes maybe, sir.

Q After that what happened then?

A He removed it.

Q After the accused has removed his penis from your vagina what else happened?

A No more, sir, he sat down.

Q What, if any, did he tell you?

A There was, sir. He told me not to report the matter to my

 mother and to anybody in their house.

Q What else did he tell you?

A He told me that if I told anyone what happened, he will kill me.

Q After that where did you go?

A I went home already, sir. 4

The principal submission of appellant is that he was suffering from a metal aberration characterized as schizophrenia when he inflicted his violent
intentions upon Estelita. At the urging of his counsel, the trial court suspended the trial and ordered appellant confined at the National Mental Hospital
in Mandaluyong for observation and treatment. In the meantime, the case was archived. Appellant was admitted into the hospital on 29 December
1976 and stayed there until 26 June 1978.

During his confinement, the hospital prepared four (4) clinical reports on the mental and physical condition of the appellant, all signed by Dr. Simplicio
N. Masikip and Dr. Arturo E. Nerit, physician-in-charge and chief, Forensic Psychiatry Service, respectively.

In the first report dated 27 January 1977, the following observations concerning appellant's mental condition were set forth:

On admission he was sluggish in movements, indifferent to interview, would just look up whenever questioned but refused to answer.

On subsequent examinations and observations he was carelessly attired, with dishevelled hair, would stare vacuously through the window,
or look at people around him. He was indifferent and when questioned, he would just smile inappropriately. He refused to verbalize, even
when persuaded, and was emotionally dull and mentally inaccessible. He is generally seclusive, at times would pace the floor, seemingly in
deep thought. Later on when questioned his frequent answers are "Aywan ko, hindi ko alam." His affect is dull, he claimed to hear strange
voices "parang ibon, tinig ng ibon," but cannot elaborate. He is disoriented to 3 spheres and has no idea why he was brought here.

The report then concluded:

In view of the foregoing examinations and observations, Policarpio Rafanan, Jr. y Gambawa is found suffering from a mental disorder called schizophrenia, manifested by carelessness in grooming, sluggishness in
movements, staring vacuously, indifferen[ce], smiling inappropriately, refusal to verbalize, emotional dullness, mental inaccessibility, seclusiveness, preoccupation, disorientation, and perceptual aberrations of hearing
strange sounds. He is psychotic or insane, hence cannot stand court trial. He needs further hospitalization and treatment. 5

The second report, dated 21 June 1977, contained the following description of appellant's mental condition:

At present he is still seclusive, undertalkative and retarded in his reponses. There is dullness of his affect and he appeared preoccupied. He
is observed to mumble alone by himself and would show periods of being irritable saying — "oki naman" with nobody in particular. He claim
he does not know whether or not he was placed in jail and does not know if he has a case in court. Said he does not remember having
committed any wrong act

and the following conclusions:

 In view of the foregoing examinations and observations Policarpio Rafanan, Jr. y Gambawa is at present time still psychotic or insane,
manifested by periods of irritability — cursing nobody in particular, seclusive, underactive, undertalkative, retarded in his response, dullness
of his affect, mumbles alone by himself, preoccupied and lack of insight.

He is not yet in a condition to stand court trial. He needs further hospitalization and treatment. 6

In the third report, dated 5 October 1977, appellant was described as having become "better behaved, responsive" and "neat in person," and "adequate in his emotional tone, in touch with his surroundings and . . . free from hallucinatory
experiences." During the preceding period, appellant had been allowed to leave the hospital temporarily; he stayed with a relative in Manila while coming periodically to the hospital for check-ups. During this period, he was said to have
been helpful in the doing of household chores, conversed and as freely with other members of the household and slept well, although, occasionally, appellant smiled while alone. Appellant complained that at times he heard voices of
small children, talking in a language he could not understand. The report concluded by saying that while appellant had improved in his mental condition, he was not yet in a position to stand trial since he needed further treatment,
medication and check-ups. 7

In the last report dated 26 June 1978, appellant was described as behaved, helpful in household chores and no longer talking while alone. He was said to be "fairly groomed" and "oriented" and as denying having hallucinations. The
report concluded that he was in a "much improved condition" and "in a mental condition to stand court trial." 8

Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that appellant was sick one or two years before his admission into the hospital, in effect implying that appellant was already suffering from

The defense next presented Raquel Jovellano, a psychiatrist engaged in private

schizophrenia when he raped complainant. 9

practice, who testified that she had examined and treated the appellant.

Appellant's plea of insanity rests on Article 12 of the Revised Penal Code which provides:

Art. 12. Circumstances which exempt from criminal liability. —

The following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

Where the imbecile or an insane person has committed an act which the law defines as a
felony (delito), the court shall order his confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not be permitted to leave without first
obtaining the permission of the same court.

xxx xxx xxx

Although the Court has ruled many times in the past on the insanity defense, it was only in People
vs. Formigones 10that the Court elaborated on the required standards of legal insanity, quoting
extensively from the Commentaries of Judge Guillermo Guevara on the Revised Penal Code, thus:

The Supreme Court of Spain held that in order that this exempting circumstance may be
taken into account, it is necessary that there be a complete deprivation of intelligence in
committing the act, that is, that the accused be deprived of reason; that there be no
responsibility for his own acts; that he acts without the least discernment; (Decision of the
Supreme Court of Spain of November 21, 1891; 47 Jur. Crim. 413.) that there be a complete
absence of the power to discern, (Decision of the Supreme Court of Spain of April 29, 1916;
96 Jur. Crim. 239) or that there be a total deprivation of freedom of the will. (Decision of the
Supreme Court of Spain of April 9, 1872; 6 Jur. Crim. 239) For this reason, it was held that
the imbecility or insanity at the time of the commission of the act should absolutely deprive a
person of intelligence or freedom of will, because mere abnormality of his mental faculties
 does not exclude imputability. (Decision of the Supreme Court of Spain of April 20, 1911; 86
Jur. Crim. 94, 97.)

The Supreme Court of Spain likewise held that deaf-muteness cannot be [equated with]
imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that
the defendant had previously lost his reason or was demented, a few moments prior to or
during the perpetration of the crime, it will be presumed that he was in a normal condition.
Acts penalized by law are always reputed to be voluntary, and it is improper to conclude that
a person acted unconsciously, in order to relieve him from liability, on the basis of his mental
condition, unless his insanity and absence of will are proved. (Emphasis supplied.)

The standards set out in Formigones were commonly adopted in subsequent cases. 11 A linguistic or
grammatical analysis of those standards suggests that Formigones established two (2)
distinguishable tests: (a) the test of cognition — "complete deprivation of intelligence in committing
the [criminal] act," and (b) the test of volition — "or that there be a total deprivation freedom of the
will." But our caselaw shows common reliance on the test of cognition, rather than on a test relating
to "freedom of the will;" examination of our caselaw has failed to turn up any case where this Court
has exempted an accused on the sole ground that he was totally deprived of "freedom of the
will," i.e., without an accompanying "complete deprivation of intelligence." This is perhaps to be
expected since a person's volition naturally reaches out only towards that which is presented as
desirable by his intelligence, whether that intelligence be diseased or healthy. In any case, where the
accused failed to show complete impairment or loss of intelligence, the Court has recognized at
most a mitigating, not an exempting, circumstance in accord with Article 13(9) of the Revised Penal
Code: "Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts." 12
Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized by inability to distinguish between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly

A standard textbook in psychiatry describes

called dementia praecox, it is said to be the most common form of psychosis an usually develops between the ages 15 and 30. 13

some of the symptoms of schizophrenia in the following manner:

Eugen Bleuler later described three general primary symptoms of schizophrenia: a

disturbance of association, a disturbance of affect, and a disturbance of activity. Bleuler also
stressed the dereistic attitude of the schizophrenic — that is, his detachment from reality and
consequent autism and the ambivalence that expresses itself in his uncertain affectivity and
initiative. Thus, Bleuler's system of schizophrenia is often referred to as the four A's:
association, affect, autism, and ambivalence.

xxx xxx xxx

Kurt Schneider described a number of first-rank symptoms of schizophrenia that he

considered in no way specific for the disease but of great pragmatic value in making a
diagnosis. Schneider's first-rank symptoms include the hearing of one's thoughts spoken
aloud, auditory hallucinations that comment on the patient's behavior, somatic hallucinations,
the experience of having one's thoughts controlled, the spreading of one's thoughts to
others, delusions, and the experience of having one's actions controlled or influenced from
the outside.

Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on the basis of
second-rank symptoms, along with an otherwise typical clinical appearances. Second-rank
 symptoms include other forms of hallucination, perplexity, depressive and euphoric disorders
of affect, and emotional blunting.

Perceptual Disorders

Various perceptual disorders occur in schizophrenia . . . .

Hallucinations. Sensory experiences or perceptions without corresponding external stimuli

are common symptoms of schizophrenia. Most common are auditory hallucinations, or the
hearing of voices. Most characteristically, two or more voices talk about the patient,
discussing him in the third person. Frequently, the voices address the patient, comment on
what he is doing and what is going on around him, or are threatening or obscene and very
disturbing to the patient. Many schizophrenic patients experience the hearing of their own
thoughts. When they are reading silently, for example, they may be quite disturbed by
hearing every word they are reading clearly spoken to them.

Visual hallucinations occur less frequently than auditory hallucinations in schizophrenic

patients, but they are not rare. Patients suffering from organic of affective psychoses
experience visual hallucinations primarily at night or during limited periods of the day, but
schizophrenic patients hallucinate as much during the day as they do during the night,
sometimes almost continuously. They get relief only in sleep. When visual occur in
schizophrenia, they are usually seen nearby, clearly defined, in color, life size, in three
dimensions, and moving. Visual hallucinations almost never in one of the other sensory
modalities.

xxx xxx xxx

Cognitive Disorders

Delusions. By definition, delusions are false ideas that cannot be corrected by reasoning,
and that are idiosyncratic for the patient — that is, not part of his cultural environment. They
are among the common symptoms of schizophrenia.

Most frequent are delusions of persecution, which are the key symptom in the paranoid type
of schizophrenia. The conviction of being controlled by some unseen mysterious power that
exercises its influence from a distance is almost pathognomonic for schizophrenia. It occurs
in most, if not all, schizophrenics at one time or another, and for many it is a daily
experience. The modern schizophrenic whose delusions have kept up with the scientific
times may be preoccupied with atomic power, X-rays, or spaceships that take control over
his mind and body. Also typical for
many schizophrenics are delusional fantasies about the destruction of the world. 14

it has mostly been rejected by the Court. In each of these

In previous cases where schizophrenia was interposed as an exempting circumtance, 15

cases, the evidence presented tended to show that if there was impairment of the mental faculties,
such impairment was not so complete as to deprive the accused of intelligence or the consciousness
of his acts.

The facts of the instant case exhibit much the same situation. Dr. Jovellano declared as follows:

(Fiscal Guillermo:)
Q Now, this condition of the accused schizophrenic as you found him, would you say doctor
that he was completely devoid of any consciousness of whatever he did in connection with
the incident in this case?

A He is not completely devoid of consciousness.

Q Would you say doctor, therefore, that he was conscious of threatening the victim at the
time of the commission of the alleged rape?

A Yes, he was conscious.

Q And he was conscious of forcing the victim to lie down?

A Yes.

Q And he was also conscious of removing the panty of the victim at the time?

A Yes.

Q And he was also conscious and knows that the victim has a vagina upon which he will
place his penis?

A Yeah.

Q And he was conscious enough to be competent and have an erection?

A Yes.

Q Would you say that those acts of a person no matter whether he is schizophrenic which
you said, it deals (sic) some kind of intelligence and consciousness of some acts that is
committed?

A Yes, it involves the consciousness because the consciousness there in relation to the act
is what we call primitive acts of any individual. The difference only in the act of an insane and
a normal individual, a normal individual will use the power of reasoning and consciousness
within the standard of society while an insane causes (sic) already devoid of the fact that he
could no longer withstand himself in the ordinary environment, yet his acts are within the
bound of insanity or psychosis.

Q Now, Doctor, of course this person suffering that ailment which you said the accused here
is suffering is capable of planning the commission of a rape?

A Yes, they are also capable.

Q He is capable of laying in wait in order to assault?

A Yes.

Q And would you say that condition that ability of a person to plan a rape and to perform all
the acts preparatory to the actual intercourse could be done by an insane person?
 A Yes, it could be done.

Q Now, you are talking of insanity in its broadest sense, is it not?

A Yes, sir.

Q Now, is this insane person also capable of knowing what is right and what is wrong?

A Well, there is no weakness on that part of the individual. They may know what is wrong but
yet there is no inhibition on the individual.

Q Yes, but actually, they are mentally equipped with knowledge that an act they are going to
commit is wrong?

A Yeah, they are equipped but the difference is, there is what we call they lost the inhibition.
The reasoning is weak and yet they understand but the volition is [not] there, the drive is
[not]
there. 16 (Emphasis supplied)

The above testimony, in substance, negates complete destruction of intelligence at the time of commission of the act charged which, in the current
state of our caselaw, is critical if the defense of insanity is to be sustained. The fact that appellant Rafanan threatened complainant Estelita with death
should she reveal she had been sexually assaulted by him, indicates, to the mind of the Court, that Rafanan was aware of the reprehensible moral
quality of that assault. The defense sought to suggest, through Dr. Jovellano's last two (2) answers above, that person suffering from schizophrenia
sustains not only impairment of the mental faculties but also deprivation of there power self-control. We do not believe that Dr. Jovellano's testimony,
by itself, sufficiently demonstrated the truth of that proposition. In any case, as already pointed out, it is complete loss of intelligence which must be
shown if the exempting circumstance of insanity is to be found.

Here, appellant failed to present clear

The law presumes every man to be sane. A person accused of a crime has the burden of proving his affirmative allegation of insanity. 17

and convincing evidence regarding his state of mind immediately before and during the sexual
assault on Estelita. It has been held that inquiry into the mental state of the accused should relate to
the period immediately before or at the very moment the act is committed. 18 Appellant rested his
case on the testimonies of two (2) physicians (Dr. Jovellano and Dr. Nerit) which, however, did not
purport to characterize his mental condition during that critical period of time. They did not
specifically relate to circumtances occurring on or immediately before the day of the rape. Their
testimonies consisted of broad statements based on general behavioral patterns of people afflicted
with schizophrenia. Curiously, while it was Dr. Masikip who had actually observed and examined
appellant during his confinement at the National Mental Hospital, the defense chose to present Dr.
Nerit.

Accordingly, we must reject the insanity defense of appellant Rafanan.

In People vs. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting
because it does not completely deprive the offender of the consciousness of his acts, may be
considered as a mitigating circumstance under Article 13(9) of the Revised Penal Code, i.e., as an
illness which diminishes the exercise of the offender's will-power without, however, depriving him of
the consciousness of his acts. Appellant should have been credited with this mitigating
circumstance, although it would not have affected the penalty imposable upon him under Article 63
of the Revised Penal Code: "in all cases in which the law prescribes a single indivisible penalty
(reclusion perpetua in this case), it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed."

WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that the amount of moral
damages is increased to P30,000.00. Costs against appellant.

DOMICILE AND RESIDENCE

G.R. No. 100710 September 3, 1991

BENJAMIN P. ABELLA, petitioner,

vs.
COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.

G.R. No. 100739 September 3, 1991

ADELINA Y. LARRAZABAL, petitioner,

vs.
COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.

Sixto S. Brillantes, Jr. for petitioner in 100739.

Cesar A. Sevilla for petitioner in 100710.

Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p

The main issue in these consolidated petitions centers on who is the rightful governor of the province
of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of
votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but
who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and
registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12,
Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No.
179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710),
who obtained the second highest number of votes for the position of governor but was not allowed
by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3)
Leopoldo E. Petilla, the vice-governor of the province of. Leyte.

This is the fourth time that the controversy relating to the local elections in February 1, 1988 for
governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are
stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ,
petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF
LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P.
ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and
COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit:
The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004
involving the same parties and the same election in 1988 for the office of provincial governor
of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent
Commission on Elections dismissing the pre-proclamation and disqualification cases filed by
the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial
governor of Leyte in the local election held on February 1, 1988. The private respondent is
the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban
who was disqualified by the Commission on Elections on January 18, 1988, for lack of
residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge
this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was
granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No.
81313]) On January 31, 1988, the day before the election, she filed her own certificate of
candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30
o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a
petition with the provincial election supervisor of Leyte to disqualify her for alleged false
statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This
was immediately transmitted to the main office of the Commission on Elections, which could
not function, however, because all but one of its members had not yet been confirmed by the
Commission on Appointments. De la Cruz then came to this Court, which issued a temporary
restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte
'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor
in the province of Leyte, in the event that she obtains the winning margin of votes in the
canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission
on Elections having been fully constituted, we remanded the petition thereto for appropriate
action, including maintenance or lifting of the Court's temporary restraining order of February
4, 1988. (Id. pp. 182-184)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced
to writing) during the canvass of the election returns, seasonably elevated them to the
Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I.
Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification
case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law
Department of the COMELEC charging the private respondent with falsification and
misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the
public respondent consolidated the pre-proclamation and disqualification cases with the
Second Division.

On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of
the provincial board of canvassers, mostly on the ground that the objection raised were
merely formal and did not affect the validity of the returns or the ballots, and ordered the
proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp.
18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision,
and the matter was referred to the Law Department for 'preliminary investigation for possible
violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)

The motion for reconsideration of the resolution on the pre-proclamation cases was denied
by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30,
Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on
April 18, 1989, another temporary restraining order to the provincial board of canvassers of
Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or
from proclaiming private respondent Adelina Larrazabal Governor of Leyte.
 The motion for reconsideration of the resolution on the qualification case was also denied by
the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No.
88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa
Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at
pp. 511-513)

Disposing of the consolidated petitions, this Court rendered judgment as follows:

1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13,
1989, are affirmed and the petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4,
1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is
ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the
Omnibus Election Code, with authority to maintain or lift our temporary restraining order of
April 18, 1989, according to its own assessment of the evidence against the private
respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the
Governor of Leyte may be ascertained and installed without further delay. (p. 520)

In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining
order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of
Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued.

On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal
as governor.

On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to
declare decision void and/or motion for reconsideration and affirmed the second division's decision.
In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte.

Hence, these petitions.

We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner
Larrazabal, this Court issued a temporary restraining order on August 1, 1991.

xxx xxx xxx

... [E]ffective immediately and continuing until further orders from this Court, ordering the
respondent on on Elections to CEASE and DESIST from enforcing, implementing and
executing the decision and resolution, respectively dated February 14, 1991 and July 18,
1991.

It appearing that despite the filing of this petition before this Court and during its pendency,
the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial
Governor of Leyte and assumed the governorship as contained in his telegraphic message,
pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court
further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then
 prevailing and/or existing before the filing of this petition and to DESIST from assuming the
office of the Governor and from discharging the duties and functions thereof. (Rollo-100739,
p. 204)

In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our
pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section
78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in
G.R. No. 88004.

The argument is not meritorious.

The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R.
No. 88004.

Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710
was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner
Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence
in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of
Ormoc City like her husband who was earlier disqualified from running for the same office. The
COMELEC dismissed the petition and referred the case to its Law Department for proper action on
the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it
rules, should be prosecuted as an election offense under Section 262 of the Code.

This Court reversed and set aside the COMELEC's ruling, to wit:

The Court holds that the dismissal was improper. The issue of residence having been
squarely raised before it, it should not have been shunted aside to the Law Department for a
roundabout investigation of the private respondent's qualification through the filing of a
criminal prosecution, if found to be warranted, with resultant disqualification of the accused in
case of conviction. The COMELEC should have opted for a more direct and speedy process
available under the law, considering the vital public interest involved and the necessity of
resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A.
No. 6646.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election.

Section 6 of R.A. 6646 states as follows:

Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. ...
 xxx xxx xxx

The above-stressed circumstances should explain the necessity for continuing the
investigation of the private respondent's challenged disqualification even after the election
notwithstanding that such matter is usually resolved before the election. Independently of
these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any
reason a candidate is not declared by final judgment before an election to be disqualified ...

In fine, the Court directed the COMELEC to determine the residence qualification of petitioner
Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of
petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the
residence provided by law to qualify her to run for the position of governor in Leyte.

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to
resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la
Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a
registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in
relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at
least twenty-three years of age on election day, a qualified voter registered as such in the
barangay, municipality, city or province where he proposes to be elected, a resident therein
for at least one year at the time of the filing of his certificate of candidacy, and able to read
and write English, Pilipino, or any other local language or dialect.

xxx xxx xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose
charters prohibit their voters from voting for provincial elective officials, shall be independent
of the province. The voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective provincial officials.

The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a
resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter
of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to
Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of
Leyte. They presented testimonial as well as documentary evidence to prove their stance.

On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter
of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her
stand.

The COMELEC ruled against the respondent, now petitioner Larrazabal.

In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither
a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC
disqualified the petitioner as governor of the province of Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the
provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to
run for the position of governor of Leyte. She opines that under "the Election Law, the matter of
determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi
rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City
thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she
had the ANIMUS REVERTENDIevidenced by her continuous and regular acts of returning there in
the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40)

As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner
lacks the required residence on the evidence of record to the effect that despite protestations to the
contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the
present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year
before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor
of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In
the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code
was proper and in consonance with human experience. The petitioner did not present evidence to
show that she and her husband maintain separate residences, she at Kananga, Leyte and her
husband at Ormoc City. The second division of the COMELEC in its decision dated February 14,
1991 states:

xxx xxx xxx

But there is the more fundamental issue of residence. The only indications of a change of
residence so far as respondent is concerned are: the address indicated in the application for
cancellation filed by respondent indicating her postal address as Kananga, Leyte, the
annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due
to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a
contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two
parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses
in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses
had decided to buy their property because she wanted to beautify the house for their
residence. She attached as annex the written contract signed by her and the spouses; and
the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting
... the political plan of the Larrazabal clan was discussed, among which were (sic) the
problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that
Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga,
Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have
been staying in Kananga, very often as they have properties in Lonoy and a house in
Mahawan.

The references to residence in the documents of cancellation and registration are already
assessed for their evidentiary value in relation to the documents themselves above. The
question must therefore be addressed in relation to the testimony of Anastacia Dasigan
Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased
properties in Mahawan, Leyte and that they are seen in the house on the land leased. But
the contract of lease with option to purchase itself indicates as to where the legal residence
of the Jarrazabal is. The pertinent portion states:

SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age,

Filipino, and residents of Ormoc City, Philippines, hereinafter referred to as the LESSEES.
 The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence
Certificate No. 155774914 issued in Ormoc City.

The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or
third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that
Inday Larrazabal was going to transfer her registration so she may be able to vote for him.

For the purpose of running for public office, the residence requirement should be read as
legal residence or domicile, not any place where a party may have properties and may visit
from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide. The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their
usual place of abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis
supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96
Phil. 294 [1954]):

xxx xxx xxx

... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in
business, or practice his avocation, is not sufficient to constitute abandonment or loss of
such residence.' ... The determination of a persons legal residence or domicile largely
depends upon intention which may be inferred from his acts, activities and utterances. The
party who claims that a person has abandoned or left his residence or origin must show and
prove pre-ponderantly such abandonment or loss.

xxx xxx xxx

... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes,
to improve his life, and that, of course, includes study in other places, practice of his
avocation, or engaging in business. When an election is to be held, the citizen who left his
birthplace to improve his lot may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not absent himself from
the place of his professional or business activities; so there he registers as voter as he has
the qualifications to be one and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national elections. Despite such
 registration, the animus revertendi to his home, to his domicile or residence of origin, has not
forsaken him. ... (at pp. 297-300)

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in
Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she
established her residence in Ormoc City with her husband and considers herself a resident therein.
The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor
present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an
intention to continue her residence therein. It is common among us Filipinos to often visit places
where we formerly resided specially so when we have left friends and relatives therein although for
intents and purposes we have already transferred our residence to other places.

Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner
insists that she is such a registered voter based on the following antecedents: 1) She cancelled her
registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to
Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day
(February 1, 1988) in Kananga, Leyte.

Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of
registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the
records. As the COMELEC stated:

The train of events, which led to respondent's g of her certificate of candidacy on the basis of
her registration started on November 25, 1987, when she allegedly filed all application for
cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in
Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled
upon application of the voter due to transfer of residence.' Thereafter, she registered in
Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was
contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was
submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the
submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election
Registrar's Office with only the poll clerk and the third member because the Chairman of the
Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B".

We find the version pressed by respondent unworthy of belief. The story is marked by so
many bizarre cirumtances not consistent with the ordinary course of events or the natural
behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal

happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it
was not sent to the Board of Election Inspectors in a sealed envelope;

(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988;

(3) The voter's affidavit was delivered by itself without any endorsement or covering letter
from the Election Registrar or anybody else;

(4) The election clerk delivered the application for cancellation only towards the last hour of
the revision day, allegedly at 4:30 P.M., January 9, 1988;

(5) All the members of the Board of Election Inspectors had already signed the Minutes
indicating that no revision of the voter's list was made as of 5:00 PM
(6) The poll clerk and the third member prepared another minutes stating that the election
clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the
minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan,
Kananga, was supposed to have filled up an application for cancellation of his registration in
Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for
cancellation was never submitted in evidence.

(8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17
are far removed from the serial numbers of the other new registrants in November 28, 1987
in the same precinct.

The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and
the poll clerk had written in Part II of the same, closed by the signatures of both officials
showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan,
Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame
Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is
consistent with the list of new voters after the November 28, 1987 for Precinct No. 17,
Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File
of the Commission per certification of the Chief, National Central File Division on January 25,
1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to
the Commission could only have come from the Board of Election Inspectors of Precinct No.
17, after the November 28, 1987 registration, for the Election Registrar could not have had
the affidavits of these new registrants apart from those supplied by the Precinct itself. Why
were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre
series of inadvertence and neglect that spanned Ormoc City and Kananga? This also
explains the certification dated January 29, 1988, of the Election Registrar of Kananga that
as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in
Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that
the same Registrar certified for the first time that there were two voters lists, the first without
the names of the Larrazabals and the second, which appeared only after February 1,
submitted by the Chairman of the Board for Precinct 17 which contained the spouses
Larrazabals' names.

It might also be stressed that one set of voter's list Exh. "G" had the signature of both the
Chairman, poll clerk and third member of the board, while the one which appeared later
which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I".

From the certification of the National Central Files, it appears that the Serial Nos. of the
newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J
0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio
V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits
with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of
the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of
precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in
Kananga, Municipal High School Building. How these documents came to be used in
Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been
explained.

It also takes a lot of straining to believe the story about the effort to cancel registration on
November 25, 1987, which application surfaced before the Board of Election inspectors for
 Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by
Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the
purpose of receiving inclusion and exclusion orders from the courts, that the application for
cancellation would be coincidentally found and delivered to the Board of Election Inspectors
for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said
precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion
was received from any court and that the board proceeded with the numbering of a total 229
voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh.
"3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third
member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office
arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal.

It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15,
Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina
Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98.
At the back of the list there is a certification that there was no voter which was included by
court order and that to voters, one Montero and one Salvame were excluded by virtue of
such order. As of January 29, 1988, when the certified true copy of the Voter's List for
Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which
would show what transpired on January 9, 1988, as alleged by the Election Registrar for
Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation
was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the
City Registrar for Ormoc only on February 1, 1990, which for the first time showed
handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma
Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the
entry which purports to have been on January 9, 1988, this evidence could have been used
to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14,
1988. In fact if these entries indicating (sic) were made, they would have been evident in
Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-
C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when
the certification of the list of voters was made and that they were annotated in the voter's list
after that date. This is consistent with Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was
not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and
her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15,
Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27)

The Court is bound by these factual findings as they are supported by substantial evidence:

In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the
'independence and all the needed concomitant powers' of the Commission on Elections,
Justice Antonio P. Barredo declared that it is but proper that the Court should accord the
greatest measures of presumption of regularity to its course of action ... to the end it may
achieve its designed place in the democratic fabric of our government ... (Abella v.
Larrazabal, supra)

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner
poses an alternative position that her being a registered voter in Ormoc City was no impediment to
her candidacy for the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

 Cities that are highly urbanized, as determined by law, and component cities whose charters
prohibit their voters from voting for provincial elective officials, shall be independent of the
province. The voters of component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the
Provincial Board of the Province of Leyte — The qualified voters of Ormoc City shall not be
qualified and entitled to vote in the election of the provincial governor and the members of
the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up
with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but
is, nevertheless, considered independent of the province of Leyte to which it is geographically
attached because its charter prohibits its voters from voting for the provincial elective officials. The
question now is whether or not the prohibition against the 'city's registered voters' electing the
provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial
officials.

The petitioner citing section 4, Article X of the Constitution, to wit:

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities and cities and
municipalities with respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.

submits that "while a Component City whose charter prohibits its voters from participating in the
elections for provincial office, is indeed independent of the province, such independence cannot be
equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and
nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the
provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities,
component cities whose charters prohibit their voters from voting for provincial elective officials are
independent of the province. In the same provision, it provides for other component cities within a
province whose charters do not provide a similar prohibition. Necessarily, component cities like
Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated
like highly urbanized cities which are outside the supervisory power of the province to which they are
geographically attached. This independence from the province carries with it the prohibition or
mandate directed to their registered voters not to vote and be voted for the provincial elective offices.
The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated
December 10, 1987 applies to this case. While the cited case involves Olongapo City which is
classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits
registered voters of Ormoc City from voting and being voted for elective offices in the province of
Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to
vote in the election of the provincial governor and the members of the provincial board of the
Province of Leyte' connotes two prohibitions — one, from running for and the second, from voting for
any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong
English" since nowhere in the provision is there any reference to a prohibition against running for
provincial elective office. She states that if the prohibition to run was indeed intended, the provision
should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor."
A comma should have been used after the word qualified and after the word "vote" to clearly indicate
that the phrase "in the election of the provincial governor" is modified separately and distinctly by the
words "not qualified" and the words "not entitled to vote." (Petition, p. 19)

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential
Decree No. 957 in relation to the conjunction and, to wit:

Time of Completion. — Every owner or developer shall construct and provide the facilities,
improvements, infrastructures and other forms of development, including water supply and
lighting facilities, which are offered and indicated in the approved subdivision or
condominium plans. ...

The Court ruled:

We further reject petitioner's strained and tenuous application of the called doctrine of last
antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would
thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of
development' interpreted to mean that the demonstrative Phrase 'which are offered and
indicated in the approved subdivision plans, etc,' refer only to 'other forms of development'
and not to 'facilities, improvements and infrastructures.' While this subserves his purpose,
such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent
words, is illogical and erroneous. The complete and applicable rule is ad proximum
antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57
citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the
nearest antecedent, unless it be prevented by the context. In the present case, the
employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other
forms of development,' far from supporting petitioner's theory, enervates it instead since it is
basic in legal hermeneutics that and is not meant to separate words but is a conjunction
used to denote a joinder or union. (at pp. 81-83)

Applying these principles to the instant case, the conjunction and between the phrase shall not be
qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the
demonstrative phrase "in the election of the provincial governor and the members of the provincial
board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second
division is null and void on the ground that on that date, the term of Commissioner Andres Flores,
one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2,
1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was
confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed
by the President for three years from February 15, 1988 to February 15, 1991.)
The petitioner postulates that the President has no power to fix the terms of office of the
Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With
regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired
on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit:

xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years, without reappointment. Any
appointment to any vacancy shall be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a temporary or acting capacity. In
relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section
15 thereof, to wit:

xxx xxx xxx

The incumbent Members of the Civil Service Commission, the Commission on Elections, and
the Commission on Audit shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become incapacitated to
discharge The duties of their office or appointed to a new term thereunder. In no case shall
any Member serve longer than seven years including service before the ratification of this
Constitution.

There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in
the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]):

xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely
necessary to a decision of the case. If there exists some other ground based on statute or
general law or other grounds of construction, we decide the case on a non-constitutional
determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R.
Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45)

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how
this could validate the holding of an elective office by one who is clearly disqualified from running for
that position and the continued exercise of government powers by one without legal authority to do
so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory
provisions by public officers especially where, as in this case, we merely affirm the decision of the
COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member.

Moreover, under the peculiar circumstances of this case, the decision of the second division of
COMELEC would still be valid under the de facto doctrine.

Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15,
1991. In these three years he exercised his duties and functions as Commissioner. Granting in the
absence of a statute expressly stating when the terms of the COMELEC Chairman and members
commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance
with the constitutional provision that the terms of office in the COMELEC are on a staggered basis
commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a
color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are
considered valid. The Court ruled in the case of Leyte Acting Vice-Governor Aurelio D. Menzon v.
Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991:

And finally, even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least, the petitioner is
a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color
of a known appointment. As revealed by the records, the petitioner was appointed by no less
than the alter ego of the President, the Secretary of Local Government, after which he took
his oath of office before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra. Concededly, the appointment has the color
of validity.

Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next
to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en
banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as
governor disallowed Abella from assuming position of governor in accordance with section 6,
Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on Elections (174
SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him
these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases
were petitions for a quowarranto filed under section 253 of the Omnibus Code, contesting the
eligibility of the respondents after they had been proclaimed duly elected to the Office from which
they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under
section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of
candidacy for material misrepresentations and was seasonably filed on election day. He, therefore,
avers that since under section 6 of Republic Act 6646 it is provided therein that:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and
the votes case for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered
counted making her a non-candidate, he, who obtained the second highest number of votes should
be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that
the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal
considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief
that she was a qualified candidate for the position of governor. Her votes were counted and she
obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was
repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the
candidates who obtained the second highest number of votes were not allowed to assume the
positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in
Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in
the event a candidate for an elected position who is voted for and who obtains the highest number of
votes is disqualified for not possessing the eligibility requirements at the time of the election as
provided by law, the candidate who obtains the second highest number of votes for the same
position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the
Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to
determine whether or not Larrazabal was qualified to be a candidate for the position of governor in
the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in
the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that
as he obtained only the second highest number of votes in the election, he was obviously not
the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed
elected after the votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect, the second placer won by
default. That decision was supported by eight members of the Court then, (Cuevas, J.,
ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and
Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.)
One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor
of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more
logical and democratic rule. That case, which reiterated the doctrine first announced in 1912
in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although
one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were
on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

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

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

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

In sum, the Court does not find any reason to reverse and set aside the questioned decision
and resolution of the COMELEC. The COMELEC has not acted without or in excess of
jurisdiction or in grave abuse of discretion.

WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second
division of the Commission on Elections dated February 14, 1991 and the questioned
Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The
temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the
petitioners.

SO ORDERED.

MARRIAGE

G.R. No. L-5028 November 26, 1952

FELIPE CABAGUE and GERONIMO CABAGUE, plaintiffs-appellants,

vs.
MATIAS AUXILIO and SOCORRO AUXILIO, defendants-appellees.

Generoso F. Obusan for appellants.

Pedro M. Tagala for appellees.

BENGZON, J.:

According to the Rules of Court parol evidence is not admissible to prove an agreement made upon
the consideration of marriage other than a mutual promise to marry.1 This litigation calls for
application of that rule.

In the justice of the peace court of Basud, Camarines Norte, Felipe Cabague and his son Geronimo
sued the defendant Matias Auxilio and his daughter Socorro to recover damages resulting from
defendants' refusal to carry out the previously agreed marriage between Socorro and Geronimo.

The complaint alleged, in short: (a) that defendants promised such marriage to plaintiffs, provided
the latter would improve the defendants' house in Basud and spend for the wedding feast and the
needs of the bride; (b) that relying upon such promises plaintiffs made the improvement and spent
P700; and (c) that without cause defendants refused to honor their pledged word.

The defendants moved to dismiss, arguing that the contract was oral, unenforceable under the rule
of evidence hereinbefore mentioned. And the court dismissed the case. On appeal to the Court of
First Instance, the plaintiffs reproduced their complaint and defendants reiterated their motion to
dismiss. From an order of dismissal this appeal was perfected in due time and form.

It should be observed preliminarily that, under the former rules of procedure, when the complaint did
not state whether the contract sued on was in writing or not, the statute of frauds could be no ground
for demurrer. Under the new Rules "defendant may now present a motion to dismiss on the ground
that the contract was not in writing, even if such fact is not apparent on the face of the complaint.
The fact may be proved by him." (Moran Rules of Court 2d ed. p. 139 Vol. I.)
There is no question here that the transaction was not in writing. The only issue is whether it may be
proved in court.

The understanding between the plaintiffs on one side and the defendants on the other, really
involves two kinds of agreement. One, the agreement between Felipe Cabague and the defendants
in consideration of the marriage of Socorro and Geronimo. Another, the agreement between the two
lovers, as "a mutual promise to marry". For breach of that mutual promise to marry, Geronimo may
sue Socorro for damages. This is such action, and evidence of such mutual promise is
admissible.2 However Felipe Cabague's action may not prosper, because it is to enforce an
agreement in consideration of marriage. Evidently as to Felipe Cabague and Matias Auxilio this
action could not be maintained on the theory of "mutual promise to marry".3 Neither may it be
regarded as action by Felipe against Socorro "on a mutual promise to marry."

Consequently, we declare that Geronimo may continue his action against Socorro for such damages
as may have resulted from her failure to carry out their mutual matrimonial promises.

Wherefore this expediente will be returned to the lower court for further proceedings in accordance
with this opinion. So ordered.

Paras, C.J., Pablo, Padilla, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur.

G.R. No. L-8166 February 8, 1916

JORGE DOMALAGAN, plaintiff-appellee,

vs.
CARLOS BOLIFER, defendant-appellant.

M. Abejuela for appellant.

Troadio Galicano for appellee.

JOHNSON, J.:

This action was commenced in the Court of First Instance of the Province of Misamis, on the 17th of
December, 1910. It was not presented to the Supreme Court until the 11th of January 1916. Its
purpose was to recover of the defendant the sum of P516, together with damages estimated in the
sum of P350 and interest, and costs.

In support of his claim the plaintiff alleged that, in the month of November, 1909, he and the
defendant entered into a contract by virtue of the terms of which he was to pay to the defendant the
sum of P500 upon the marriage of his son Cipriano Domalagan with the daughter of the defendant,
Bonifacia Bolifer, that later, in the month of August, 1910, he completed his obligation under said
contract by paying to the defendant the said sum of 500, together with the further sum of P16 "as
hansel or token of future marriage," that, notwithstanding said agreement, the said Bonifacio Bolifer,
in the month of August, 1910, was joined in lawful wedlock to Laureano Sisi; that immediately upon
learning of the marriage of Bonifacia Bolifer he demanded of the defendant the return of the said
sum of P516 together with the interest and damages; that the damages which he suffered resulted
from the fact that he, in order to raise said sum of P500, was obliged to sell certain real property
belonging to him, located in the Province of Bohol, at a great sacrifice.

To the complaint the defendant presented a general denial. He also alleged that the facts stated in
the complaint do not constitute a cause of action. Upon the issue presented the cause was brought
on for trial. After hearing the evidence the Honorable Vicente Nepomuceno, judge, in an extended
opinion in which all of the evidence adduced during the trial of the cause is carefully analyzed
reached the conclusion "of fact that plaintiff delivered to defendant the sum of P516 sued for and that
Carlos Bolifer and Laureana Loquero received and did not return the said amount," and for the
reason that the evidence did not sufficiently show that the plaintiff had suffered any additional
damages, rendered a judgment in favor of the plaintiff and against the defendant in said sum of
P516 together with the interest at the rate of 6 per cent from the 17th of December, 1910, and costs.

From that judgment the defendant appealed to this court and made the following assignments of
error:

1. In holding to be proven the fact of the delivery by the plaintiff of the sum of P516 to the
defendant, Carlos Bolifer; and

2. In holding to be valid and effective the verbal contract entered into by the plaintiff and the
defendant in regard to the delivery of the money by reason of a prospective marriage.

The first assignment of error presents a question of fact. The lower court found that a large
preponderance of the evidence showed that the plaintiff had delivered to the defendant the sum of
P516 in substantially the manner alleged in the complaint. Taking into consideration that the lower
court saw and heard the witnesses, together with the further fact that there is an abundance of
uncontradicted proof supporting the findings of the lower court, we are not inclined to disturb its
judgment for any of the reasons given by the appellant in support of his first assignment of error.

With reference to the second assignment of error, the appellant calls our attention to the provisions
of paragraph 3 of section 335 of the Code of Procedure in Civil Action. The appellant argues that by
virtue of the provisions of said paragraph and by virtue of the fact that the agreement upon which the
plaintiff relies and under which he paid to the defendant the sum of P516 had not been reduced to
writing, he could therefore not recover. The appellant contends that a contract, such as the one
relied upon by the plaintiff, in order to be valid, must be reduced to writing. We have examined the
record in vain to find that the defendant during the trial of the cause objected to any proof or any part
thereof, presented by the plaintiff which showed or tended to show the existence of the alleged
contract. That part of said section 335 which the appellant relies upon for relief provides:

In the following cases an agreement hereafter made shall be unenforceable by action unless
the same, or some note or memorandum thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement can not be received without
the writing or secondary evidence of its contents:

1. . . .

2. . . .

3. An agreement made upon the consideration of marriage, other than a mutual promise to
marry.

It will be noted, by reference to said section, that "evidence " of the agreement referred to "can not
be received without the writing or secondary evidence of its contents." As was said above all of the
"evidence" relating to said "agreement" was admitted without the slightest objection.
Said section (335) does not render oral contracts invalid. A contract may be valid and yet, by virtue
of said section, the parties will be unable to prove it. Said section provides that the contract shall not
be enforced by an action unless the same is evidence by some note or memorandum. Said section
simply provides the method by which the contract mentioned therein may be proved. It does not
declare that said contract are invalid, which have not been reduced to writing, except perhaps those
mentioned in paragraph 5 of said section (335). A contract may be a perfectly valid contract even
though it is not clothed with the necessary form. If it is not made in confirmity with said section of
course it cannot be proved, if proper objection is made. But a failure to except to evidence presented
in order to prove the contract, because it does not conform to the statute, is a waiver of the
provisions of the law. If the parties to an action, during the trial of the cause, make no objection to
the admissibility of oral evidence to support contracts like the one in question and permit the contract
to be proved, by evidence other than a writing, it will be just as binding upon the parties as if it had
been reduced to writing. (Anson on Contracts, p. 75; Conlu vs. Araneta and Guanko, 15 Phil. Rep.,
387; Gallemit vs. Tabiliran, 20 Phil. Rep., 241, 246; Kuenzle and Streiff vs. Joingco, 22 Phil. Rep.,
110, 112; Gomez vs. Salcedo, 26 Phil. Rep., 485, 489.)

For the foregoing reasons we find nothing in the record justifying a reversal or modification of the
judgment of the lower court based upon either assignment of error. Therefore the judgment of the
lower court is hereby affirmed, with costs. So ordered.

G.R. No. L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner,

vs.
THE HON. COURT OF APPEALS, ET AL., respondents.

Regino Hermosisima for petitioner.

F.P. Gabriel, Jr. for respondents.

CONCEPCION, J.:

An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of

Appeals modifying that of the Court of First Instance of Cebu.

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her
child, Chris Hermosisima, as natural child and moral damages for alleged breach of promise.
Petitioner admitted the paternity of child and expressed willingness to support the latter, but denied
having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on
October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on February
16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the
dispositive part of which reads:

WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the
natural daughter of defendant, and confirming the order pendente lite, ordering defendant to
pay to the said child, through plaintiff, the sum of thirty pesos (P30.00), payable on or before
the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR
THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages;
the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of
FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against
defendant.
On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual
and compensatory damages and the moral damages, which were increased to P5,614.25 and
P7,000.00, respectively.

The main issue before us is whether moral damages are recoverable, under our laws, for breach of
promise to marry. The pertinent facts are:

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the
Sibonga Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than
she, used to go around together and were regarded as engaged, although he had made no promise
of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in
the City of Cebu, where intimacy developed among her and the petitioner, since one evening in
1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V
"Escaño," to which he was then attached as apprentice pilot. In February 1954, Soledad advised
petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris
Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However, subsequently,
or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was
commenced on or about October 4, 1954.

Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted
the recovery of damages for breach to marry. Article 43 and 44 of said Code provides:

ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract
marriage. No court shall entertain any complaint by which the enforcement of such promise
is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor
with the concurrence of the person whose consent is necessary for the celebration of the
marriage, or if the banns have been published, the one who without just cause refuses to
marry shall be obliged to reimburse the other for the expenses which he or she may have
incurred by reason of the promised marriage.

The action for reimbursement of expenses to which the foregoing article refers must be
brought within one year, computed from the day of the refusal to celebrate the marriage.

Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs.
Syquia (58 Phil., 866), that "the action for breach of promises to marry has no standing in the civil
law, apart from the right to recover money or property advanced . . . upon the faith of such promise".
The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem
it best, however, to change the law thereon. We quote from the report of the Code Commission on
said Proposed Civil Code:

Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles
are not enforced in the Philippines. The subject is regulated in the Proposed Civil Code not
only as to the aspect treated of in said articles but also in other particulars. It is advisable to
furnish legislative solutions to some questions that might arise relative to betrothal. Among
the provisions proposed are: That authorizing the adjudication of moral damages, in case of
breach of promise of marriage, and that creating liability for causing a marriage engagement
to be broken. 1awphî l.nèt

Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I,
Title III, Book I thereof:
 Art. 56. A mutual promise to marry may be made expressly or impliedly.

Art. 57. An engagement to be married must be agreed directly by the future spouses.

Art. 58. A contract for a future marriage cannot, without the consent of the parent or
guardian, be entered into by a male between the ages of sixteen and twenty years or by a
female between the ages of sixteen and eighteen years. Without such consent of the parents
or guardian, the engagement to marry cannot be the basis of a civil action for damages in
case of breach of the promise.

Art. 59. A promise to marry when made by a female under the age of fourteen years is not
civilly actionable, even though approved by the parent or guardian.

Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a
male for seduction shall not be affected.

Art. 61. No action for specific performance of a mutual promise to marry may be brought.

Art. 62. An action for breach of promise to marry may be brought by the aggrieved party
even though a minor without the assistance of his parent or guardian. Should the minor
refuse to bring suit, the parent or guardian may institute the action.

Art. 63. Damages for breach of promise to marry shall include not only material and
pecuniary losses but also compensation for mental and moral suffering.

Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the
affianced parties, who cause a marriage engagement to be broken shall be liable for
damages, both material and moral, to the engaged person who is rejected.

Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be
obliged to return what he or she has received from the other as gift on account of the
promise of the marriage.

These article were, however, eliminated in Congress. The reason therefor are set forth in the report
of the corresponding Senate Committee, from which we quote:

The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has
been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of
promise suit in the United States and in England has shown that no other action lends itself more
readily to abuse by designing women and unscrupulous men. It is this experience which has led to
the abolition of the rights of action in the so-called Balm suit in many of the American States.

See statutes of:

Florida 1945 — pp. 1342 — 1344

Maryland 1945 — pp. 1759 — 1762
Nevada 1943 — p. 75
Maine 1941 — pp. 140 — 141
New Hampshire 1941 — p. 223
California 1939 — p. 1245
Massachusetts 1938 — p. 326
 Indiana 1936 — p. 1009
Michigan 1935 — p. 201
New York 1935
Pennsylvania p. 450

The Commission perhaps though that it has followed the more progression trend in
legislation when it provided for breach of promise to marry suits. But it is clear that the
creation of such causes of action at a time when so many States, in consequence of years of
experience are doing away with them, may well prove to be a step in the wrong direction.
(Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.)

The views thus expressed were accepted by both houses of Congress. In the light of the clear and
manifest intent of our law making body not to sanction actions for breach of promise to marry, the
award of moral damages made by the lower courts is, accordingly, untenable. The Court of Appeals
said award:

Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-

appellee, overwhelmed by her love for him finally yielded to his sexual desires in spite of her
age and self-control, she being a woman after all, we hold that said defendant-appellant is
liable for seduction and, therefore, moral damages may be recovered from him under the
provision of Article 2219, paragraph 3, of the new Civil Code.

Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding
and those following the one cited by the Court of Appeals, and the language used in said paragraph
strongly indicates that the "seduction" therein contemplated is the crime punished as such in Article
as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the
present case, we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant — who around thirty-six
(36) years of age, and as highly enlightened as a former high school teacher and a life insurance
agent are supposed to be — when she became intimate with petitioner, then a mere apprentice pilot,
but, also, because, the court of first instance found that, complainant "surrendered herself" to
petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of
their engagement even before they had the benefit of clergy."

The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00
for the support of the child: (2) P4,500, representing the income that complainant had allegedly failed
to earn during her pregnancy and shortly after the birth of the child, as actual and compensation
damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals
added to the second item the sum of P1,114.25 — consisting of P144.20, for hospitalization and
medical attendance, in connection with the parturiation, and the balance representing expenses
incurred to support the child — and increased the moral damages to P7,000.00.

With the elimination of this award for damages, the decision of the Court of Appeals is hereby
affirmed, therefore, in all other respects, without special pronouncement as to cost in this instance. It
is so ordered.

G.R. No. L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,

vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete public
humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get
married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his
bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair
today.

Please do not ask too many people about the reason why — That would only create
a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE

MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced
evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and
exemplary damages; P2,500.00 as attorney's fees; and the costs.

On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and
motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2,
1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at
this stage of the proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City — the latter's residence
— on the possibility of an amicable element. The court granted two weeks counted from August 25,
1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
September 8, 1955 but that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the
parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel
informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has
appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged
excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that
defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence,
must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry
the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not
valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,
December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere
surplusage, because the judgment sought to be set aside was null and void, it having been based on
evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October
30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an
action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-
14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who
wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract
marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4,
1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were
purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn.,
6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard
from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question
is raised as to the award of actual damages. What defendant would really assert hereunder is that
the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in
the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that
the same could not be adjudged against him because under Article 2232 of the New Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of
this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's
opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is
hereby affirmed, with costs.

ESTREMOS v EPHAN

G.R. No. L-18630 December 17, 1966

APOLONIO TANJANCO, petitioner,

vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.

P. Carreon and G. O. Veneracion, Jr. for petitioner.

Antonio V. Bonoan for respondents.

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

Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the
Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support
and damages.

The essential allegations of the complaint are to the effect that, from December, 1957, the defendant
(appellee herein), Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age;
that "defendant expressed and professed his undying love and affection for plaintiff who also in due
time reciprocated the tender feelings"; that in consideration of defendant's promise of marriage
plaintiff consented and acceded to defendant's pleas for carnal knowledge; that regularly until
December 1959, through his protestations of love and promises of marriage, defendant succeeded
in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her
pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as
secretary in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff
became unable to support herself and her baby; that due to defendant's refusal to marry plaintiff, as
promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock,
and social humiliation. The prayer was for a decree compelling the defendant to recognize the
unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her support and
that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's
fees.

Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to
state a cause of action.

Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case,
holding with the lower court that no cause of action was shown to compel recognition of a child as
yet unborn, nor for its support, but decreed that the complaint did state a cause of action for
damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.

The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court
of origin to proceed with the case.

Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are
not permissible in this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, L-
14733, September 30, 1960; Hermosisima vs. Court of Appeals, L-14628, January 29, 1962; and De
Jesus vs. SyQuia, 58 Phil. 886.

We find this appeal meritorious.

In holding that the complaint stated a cause of action for damages, under Article 21 above
mentioned, the Court of Appeals relied upon and quoted from the memorandum submitted by the
Code Commission to the Legislature in 1949 to support the original draft of the Civil Code. Referring
to Article 23 of the draft (now Article 21 of the Code), the Commission stated:

But the Code Commission has gone farther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the following rule:

"ART. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage."

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage either has not been made, or can not be proved.
The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above
eighteen years of age. Neither can any civil action for breach of promise of marriage be filed.
Therefore, though the grievous moral wrong has been committed, and though the girl and
her family have suffered incalculable moral damage, she and her parents cannot bring any
action for damages. But under the proposed article, she and her parents would have such a
right of action.
The Court of Appeals seems to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who has been seduced. The essential
feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27
Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient promise or

inducement and the woman must yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is from mutual desire, there is no
seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path
of virtue by the use of some species of arts, persuasions and wiles, which are calculated to
have and do have that effect, and which result in her ultimately submitting her person to the
sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or deception is
the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recover.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of
the female, and the defendant merely affords her the needed opportunity for the commission
of the act. It has been emphasized that to allow a recovery in all such cases would tend to
the demoralization of the female sex, and would be a reward for unchastity by which a class
of adventuresses would be swift to profit." (47 Am. Jur. 662)

Bearing these principles in mind, let us examine the complaint. The material allegations there are as
follows:

I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City,
while defendant is also of legal age, single and residing at 525 Padre Faura, Manila, where
he may be served with summons;

II. That the plaintiff and the defendant became acquainted with each other sometime in
December, 1957 and soon thereafter, the defendant started visiting and courting the plaintiff;

III. That the defendant's visits were regular and frequent and in due time the defendant
expressed and professed his undying love and affection for the plaintiff who also in due time
reciprocated the tender feelings;

IV. That in the course of their engagement, the plaintiff and the defendant as are wont of
young people in love had frequent outings and dates, became very close and intimate to
each other and sometime in July, 1958, in consideration of the defendant's promises of
marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to
have carnal knowledge with him;

V. That subsequent thereto and regularly until about July, 1959 except for a short period in
December, 1958 when the defendant was out of the country, the defendant through his
 protestations of love and promises of marriage succeeded in having carnal knowledge with
the plaintiff;

VI. That as a result of their intimate relationship, the plaintiff started conceiving which was
confirmed by a doctor sometime in July, 1959;

VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant
and pleaded with him to make good his promises of marriage, but instead of honoring his
promises and righting his wrong, the defendant stopped and refrained from seeing the
plaintiff since about July, 1959 has not visited the plaintiff and to all intents and purposes has
broken their engagement and his promises.

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction.
Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without exacting early
fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon
finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made
under Article 21 of the Civil Code, and no other cause of action being alleged, no error was
committed by the Court of First Instance in dismissing the complaint.

Of course, the dismissal must be understood as without prejudice to whatever actions may
correspond to the child of the plaintiff against the defendant-appellant, if any. On that point, this
Court makes no pronouncement, since the child's own rights are not here involved.

FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the
Court of First Instance is affirmed. No costs.

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside
the Decision1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in
toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of
Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not damages may be
recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the
Philippines.
The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid
trial court a complaint2 for damages against the petitioner for the alleged violation of their agreement
to get married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino
and a pretty lass of good moral character and reputation duly respected in her community; petitioner,
on the other hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and
is an exchange student taking a medical course at the Lyceum Northwestern Colleges in Dagupan
City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love on
the condition that they would get married; they therefore agreed to get married after the end of the
school semester, which was in October of that year; petitioner then visited the private respondent's
parents in Bañaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20
August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a virgin
before she began living with him; a week before the filing of the complaint, petitioner's attitude
towards her started to change; he maltreated and threatened to kill her; as a result of such
maltreatment, she sustained injuries; during a confrontation with a representative of the barangay
captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already married to
someone living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner
to pay her damages in the amount of not less than P45,000.00, reimbursement for actual expenses
amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as
may be just and equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim,3 petitioner admitted only the personal circumstances of the parties
as averred in the complaint and denied the rest of the allegations either for lack of knowledge or
information sufficient to form a belief as to the truth thereof or because the true facts are those
alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage
to or agreed to be married with the private respondent; he neither sought the consent and approval
of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his money and
passport; and finally, no confrontation took place with a representative of the barangay captain.
Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that as a result
thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered
mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous
expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order4 embodying
the stipulated facts which the parties had agreed upon, to wit:

1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan,
while the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment,
Guilig, Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City,

College of Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez

Avenue, Dagupan City since July, 1986 up to the present and a (sic) high school
graduate;
 4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3,
1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16
October 1989 a decision5 favoring the private respondent. The petitioner was thus ordered to pay the
latter damages and attorney's fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor

of the plaintiff and against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic)
litigation expenses and to pay the costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private
respondent were lovers, (b) private respondent is not a woman of loose morals or questionable
virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit and false
pretenses, promised to marry private respondent, d) because of his persuasive promise to marry
her, she allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private
respondent and her parents — in accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and
chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his
promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused
Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The
trial court gave full credit to the private respondent's testimony because, inter alia, she would not
have had the temerity and courage to come to court and expose her honor and reputation to public
scrutiny and ridicule if her claim was false.7

The above findings and conclusions were culled from the detailed summary of the evidence for the
private respondent in the foregoing decision, digested by the respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she
never had a boyfriend before, defendant started courting her just a few days after
they first met. He later proposed marriage to her several times and she accepted his
love as well as his proposal of marriage on August 20, 1987, on which same day he
went with her to her hometown of Bañaga, Bugallon, Pangasinan, as he wanted to
meet her parents and inform them of their relationship and their intention to get
married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with
members of plaintiff's family or with plaintiff, were taken that day. Also on that
occasion, defendant told plaintiffs parents and brothers and sisters that he intended
to marry her during the semestral break in October, 1987, and because plaintiff's
parents thought he was good and trusted him, they agreed to his proposal for him to
marry their daughter, and they likewise allowed him to stay in their house and sleep
with plaintiff during the few days that they were in Bugallon. When plaintiff and
defendant later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987, defendant
 would tie plaintiff's hands and feet while he went to school, and he even gave her
medicine at 4 o'clock in the morning that made her sleep the whole day and night
until the following day. As a result of this live-in relationship, plaintiff became
pregnant, but defendant gave her some medicine to abort the fetus. Still plaintiff
continued to live with defendant and kept reminding him of his promise to marry her
until he told her that he could not do so because he was already married to a girl in
Bacolod City. That was the time plaintiff left defendant, went home to her parents,
and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the
barangay captain went to talk to defendant to still convince him to marry plaintiff, but
defendant insisted that he could not do so because he was already married to a girl
in Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that
defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed
them of his desire to marry Marilou, he already looked for sponsors for the wedding,
started preparing for the reception by looking for pigs and chickens, and even
already invited many relatives and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the
case as CA-G.R. CV No. 24256. In his Brief,9 he contended that the trial court erred (a) in not
dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral damages,
attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the
trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court
made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already
29 years old at the time, does not appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior to her unfortunate experience with
defendant and never had boyfriend. She is, as described by the lower court, a barrio
lass "not used and accustomed to trend of modern urban life", and certainly would
(sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made
by the defendant to marry her." In fact, we agree with the lower court that plaintiff and
defendant must have been sweethearts or so the plaintiff must have thought because
of the deception of defendant, for otherwise, she would not have allowed herself to
be photographed with defendant in public in so (sic) loving and tender poses as
those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore,
defendant's pretense that plaintiff was a nobody to him except a waitress at the
restaurant where he usually ate. Defendant in fact admitted that he went to plaintiff's
hometown of Bañaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta
on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with
the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50,
tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told
him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan
City where he was involved in the serious study of medicine to go to plaintiff's
hometown in Bañaga, Bugallon, unless there was (sic) some kind of special
relationship between them? And this special relationship must indeed have led to
defendant's insincere proposal of marriage to plaintiff, communicated not only to her
but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where
plaintiff was working and where defendant first proposed marriage to her, also knew
 of this love affair and defendant's proposal of marriage to plaintiff, which she
declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character
and must think so low and have so little respect and regard for Filipino women that
he openly admitted that when he studied in Bacolod City for several years where he
finished his B.S. Biology before he came to Dagupan City to study medicine, he had
a common-law wife in Bacolod City. In other words, he also lived with another
woman in Bacolod City but did not marry that woman, just like what he did to plaintiff.
It is not surprising, then, that he felt so little compunction or remorse in pretending to
love and promising to marry plaintiff, a young, innocent, trustful country girl, in order
to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's

fraudulent and deceptive protestations of love for and promise to marry plaintiff that
made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these
(sic) fraud and deception on appellant's part that made plaintiff's parents agree to
their daughter's living-in with him preparatory to their supposed marriage. And as
these acts of appellant are palpably and undoubtedly against morals, good customs,
and public policy, and are even gravely and deeply derogatory and insulting to our
women, coming as they do from a foreigner who has been enjoying the hospitality of
our people and taking advantage of the opportunity to study in one of our institutions
of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil
Code of the Philippines, to compensate for the moral damages and injury that he had
caused plaintiff, as the lower court ordered him to do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises
therein the single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral
wrong or injury or violated any good custom or public policy; he has not professed love or proposed
marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for
liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a
foreigner, he is not conversant with such Filipino customs, traditions and culture. As an Iranian
Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his
Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take
four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he does not
posses good moral character. Moreover, his controversial "common law life" is now his legal wife as
their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned
on him for the live-in relationship, the private respondent should also be faulted for consenting to an
illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he
had professed his love to the private respondent and had also promised to marry her, such acts
would not be actionable in view of the special circumstances of the case. The mere breach of
promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition and the
petitioner had filed his Reply thereto, this Court gave due course to the petition and required the
parties to submit their respective Memoranda, which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his
thesis, it is clear that questions of fact, which boil down to the issue of the credibility of witnesses,
are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's
findings as to the credibility of witnesses, the latter court having heard the witnesses and having had
the opportunity to observe closely their deportment and manner of testifying, unless the trial court
had plainly overlooked facts of substance or value which, if considered, might affect the result of the
case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked
any fact of substance or values which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or
weigh all over again the evidence introduced by the parties before the lower court. There are,
however, recognized exceptions to this rule. Thus, in Medina vs.Asistio, Jr., 16 this Court took the
time, again, to enumerate these exceptions:

xxx xxx xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made
is manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v.
Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellate and appellee (Evangelista v. Alto Surety and Insurance
Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia
v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners main and reply briefs are not disputed by the
respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised
on the supposed absence of evidence and is contradicted by the evidence on record
(Salazar v. Gutierrez, 33 SCRA 242 [1970]).

Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions
in this case. Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have made it
so. The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil
Code, from which We quote:
 The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The
history of breach of promise suits in the United States and in England has shown that
no other action lends itself more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to the abolition of rights of
action in the so-called Heart Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to specifically enumerate and
punish in the statute books. 20

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs helpless, even though they
have actually suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed Civil Code the
following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the
nineteen-year old daughter of "X". A promise of marriage either has not been made,
or can not be proved. The girl becomes pregnant. Under the present laws, there is no
crime, as the girl is above nineteen years of age. Neither can any civil action for
breach of promise of marriage be filed. Therefore, though the grievous moral wrong
has been committed, and though the girl and family have suffered incalculable moral
damage, she and her parents cannot bring action for damages. But under the
proposed article, she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible
for human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

Whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or

intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept
while torts is an Anglo-American or common law concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but international criminal acts as well such
as assault and battery, false imprisonment and deceit. In the general scheme of the
Philippine legal system envisioned by the Commission responsible for drafting the New Civil
Code, intentional and malicious acts, with certain exceptions, are to be governed by the
 Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of
the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the
absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It
is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has
greatly broadened the scope of the law on civil wrongs; it has become much more supple
and adaptable than the Anglo-American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that
where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a
woman and his representation to fulfill that promise thereafter becomes the proximate cause of the
giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying
her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and
the willful injury to her honor and reputation which followed thereafter. It is essential, however, that
such injury should have been committed in a manner contrary to morals, good customs or public
policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive
protestations of love for and promise to marry plaintiff that made her surrender her virtue and
womanhood to him and to live with him on the honest and sincere belief that he would keep said
promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's
parents agree to their daughter's living-in with him preparatory to their supposed marriage." 24 In
short, the private respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction — the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable for criminal
seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age at the time of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to
marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of
Appeals,25 this Court denied recovery of damages to the woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not
only because he is approximately ten (10) years younger than the complainant —
who was around thirty-six (36) years of age, and as highly enlightened as a former
high school teacher and a life insurance agent are supposed to be — when she
became intimate with petitioner, then a mere apprentice pilot, but, also, because the
court of first instance found that, complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she "wanted to bind" him by having a
fruit of their engagement even before they had the benefit of clergy.

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had
been moral seduction, recovery was eventually denied because We were not convinced that such
seduction existed. The following enlightening disquisition and conclusion were made in the said
case:

The Court of Appeals seem to have overlooked that the example set forth in the
Code Commission's memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction, that in law is more than mere
sexual intercourse, or a breach of a promise of marriage; it connotes essentially the
idea of deceit, enticement, superior power or abuse of confidence on the part of the
 seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S.
vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient

promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust
and the intercourse is from mutual desire, there is no seduction (43
Cent. Dig. tit. Seduction, par. 56) She must be induced to depart from
the path of virtue by the use of some species of arts, persuasions and
wiles, which are calculated to have and do have that effect, and
which result in her person to ultimately submitting her person to the
sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement,

persuasion or deception is the essence of the injury; and a mere
proof of intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of

sexual desire of curiosity of the female, and the defendant merely
affords her the needed opportunity for the commission of the act. It
has been emphasized that to allow a recovery in all such cases would
tend to the demoralization of the female sex, and would be a reward
for unchastity by which a class of adventuresses would be swift to
profit. (47 Am. Jur. 662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year,
from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate
sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and
mutual passion; for had the appellant been deceived, had she surrendered
exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without
exacting early fulfillment of the alleged promises of marriage, and would have cut
short all sexual relations upon finding that defendant did not intend to fulfill his
defendant did not intend to fulfill his promise. Hence, we conclude that no case is
made under article 21 of the Civil Code, and no other cause of action being alleged,
no error was committed by the Court of First Instance in dismissing the complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from
this Court, opined that in a breach of promise to marry where there had been carnal knowledge,
moral damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to
mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra
vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan.
 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT
be the carnal knowledge, there is a chance that there was criminal or moral
seduction, hence recovery of moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages, because here mutual lust has
intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the
wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but
in the vulgar sense of deception. But when the sexual act is accomplished without
any deceit or qualifying circumstance of abuse of authority or influence, but the
woman, already of age, has knowingly given herself to a man, it cannot be said that
there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action
lies. The court, however, must weigh the degree of fraud, if it is sufficient to deceive
the woman under the circumstances, because an act which would deceive a girl
sixteen years of age may not constitute deceit as to an experienced woman thirty
years of age. But so long as there is a wrongful act and a resulting injury, there
should be civil liability, even if the act is not punishable under the criminal law and
there should have been an acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for
argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also
at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the
Civil Code and the doctrine laid down in Batarra vs. Marcos, 32 the private respondent cannot recover
damages from the petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her own doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner
or later. Take notice that she is a plain high school graduate and a mere employee . .
. (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and
without doubt, is in need of a man who can give her economic security. Her family is
in dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this
predicament prompted her to accept a proposition that may have been offered by the
petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble
birth, inferior educational background, poverty and, as perceived by him, dishonorable employment.
Obviously then, from the very beginning, he was not at all moved by good faith and an honest
motive. Marrying with a woman so circumstances could not have even remotely occurred to him.
Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe,
entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want
her to be his life's partner. His was nothing but pure lust which he wanted satisfied by a Filipina who
honestly believed that by accepting his proffer of love and proposal of marriage, she would be able
to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of morality and
brazenly defied the traditional respect Filipinos have for their women. It can even be said that the
petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not
have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual
congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms
of conscience about the entire episode for as soon as she found out that the petitioner was not going
to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari
delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35At most, it
could be conceded that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition of undue influence of the
party on whom the burden of the original wrong principally rests, or where his
consent to the transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action
by one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less,
equivalent. It does not apply where one party is literate or intelligent and the other
one is not. (c.f. Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be said that this
Court condones the deplorable behavior of her parents in letting her and the petitioner stay together
in the same room in their house after giving approval to their marriage. It is the solemn duty of
parents to protect the honor of their daughters and infuse upon them the higher values of morality
and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.

SO ORDERED.

NOT SUBJECT TO STIPULATION Commented [i1]: Start here

Panganiban September 9, 1933

JOSE R. PAÑGANIBAN, complainant,

vs.
ELIAS BORROMEO, respondent.

The Respondent in his own behalf.

Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:

These proceedings looking to the disbarment of the respondent attorney are before us on the
representations of the Solicitor-General that the respondent appear and show cause, if any he has,
why he should not be proceeded against for professional malpractice. The respondent admits that, in
his capacity as notary public he legalized the document which is the basis of the complaint against
him, and that the document contains provisions contrary to law, morals and good customs, but by
way of defense disclaims any previous knowledge of the illegal character of the document.

On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a
contract before the notary public Elias Borromeo, who was at that time a regularly admitted member Commented [i2]: This is a disbarment case filed against
of the Philippine Bar. The contract in question had been prepared by the municipal secretary of the notary public Borromeo who notarized the contract
Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at executed between the married couple.
lease, some knowledge of its contents, although he may not have been fully informed because of a
difference in dialect. The contract in substance purported to formulate an agreement between the It was alleged that notary public Borromeo cooperated in
husband and the wife which permitted the husband to take unto himself a concubine and the wife to the execution of the document and had knowledge of its
live in adulterous relationship with another man, without opposition from either one of them. contents.

The contract in substance purported to formulate an

Two questions are suggested by the record. The first concerns the points of whether or not the agreement between the husband and the wife which
contract sanctioned an illicit and immoral purpose. The second concerns the point, on the permitted the husband to take unto himself a concubine
supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be and the wife to live in adulterous relationship with
disciplined for misconduct as a notary public. another man, without opposition from either one of
them.

The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal SC: Invalid stipulation
Code, as modified by Act No. 1773 was in force. Conceding, however, that the more liberal Contrary to law, morals and public order
provisions of the Revised Penal Code should be given application, it is herein provided that the
consent or pardon given by the offended party constitutes a bar to prosecution for adultery or
concubinage.

In this instance, if the spouses should retain their present frame of mind, no prosecution of either
one by the other could be expected. Nevertheless, we think it far from the purpose of the Legislature
to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution
cannot be instituted if the offended party consent to the act or pardon the offender. This is a matter
of future contingency and is not matter for legalization in wanton disregard of good morals. We hold
the contract to contain provisions contrary to law, morals and public order, and as a consequence
not judicially recognizable.

Passing to the second question, we think there can be no question as to the right of the court to
discipline an attorney who, in his capacity as notary public, has been guilty of misconduct. To the
office of notary public there is not attached such importance under present conditions as under the
Spanish administration. Even so, the notary public exercise duties calling for carefulness and
faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to take
part in no illegal enterprise. The notary public is usually a person who has been admitted to the
practice of law, and such, in the commingling of his duties as notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who performs an act as a notary
public of a disgraceful or immoral character may be held to account by the court even to the extent
of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115
N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell
[1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la
Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken
into consideration (1) that the attorney may not have realized the full purport of the document to
which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the
commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in
this case to exercise clemency and to confine our discipline of the respondent to severe censure. So
ordered.

A.C. No. 932 June 21, 1940

In re ATTY. ROQUE SANTIAGO, respondent,

Office of the Solicitor-General Ozaeta as petitioner-complainant.

LAUREL, J.:

This is an administrative case initiated upon complaint of the Solicitor-General against the
respondent Roque Santiago, charging the latter with malpractice and praying that disciplinary action
be taken against him. Commented [i3]: This is an administrative case filed by
Sol Gen against the respondent Roque Santiatgo.
It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares
for some nine consecutive years and who was bent on contracting a second marriage, sought the A certain Ernesto asked for legal advice from the
legal advice of the respondent, who was at the time a practicing and notary public in the Province of respondent who was at that time practicing and notary
public. Respondent assured him that Ernesto may remarry
Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that
again by virtue of the prepared document which stipulates
he could secure a separation from his wife and marry again, and asked him to bring his wife on the that
afternoon of the same day, May 29, 1939. This was done and the respondent right then and there the contracting parties, who are husband and wife
prepared the document Exhibit A in which it was stipulated, among other things, that the contracting authorized each other to marry again, at the same time
parties, who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever right of action one
renouncing or waiving whatever right of action one might have against the party so marrying. After might have against the party so marrying.
the execution and acknowledgment of Exhibit A by the parties, the respondent asked the spouses to
shake hands and assured them that they were single and as such could contract another and Then respondent realized that he made a mistake so he
informed the contracting parties to come in his office and
subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the
sign the deed of cancellation of the exhibit A.
respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if
this document turns out not to be valid." SC: Invalid stipulation
contrary to law, moral, and tends to subvert the vital
Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939, contracted a second foundation of the family
marriage with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for
this service the sum of P50, but as the evidence on this point is not clear and the same is not
material in the resolution of the present case, we do not find it necessary to make any express
finding as to whether the full amount or any portion thereof was paid or, as contended by the
respondent, the service were rendered free of charge.

The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea
that seven years separation of husband and wife would entitle either of them to contract a second
marriage and for that reason prepared Exhibit A, but immediately after the execution of said
document he realized that he had made a mistake and for that reason immediately sent for the
contracting parties who, on June 30, 1939, came to his office and signed the deed of cancellation
Exhibit A.

There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit
and Soledad Colares upon the advice of the respondent and prepared by the latter as a lawyer and
acknowledged by him as a notary public is contrary to law, moral, and tends to subvert the vital
foundation of the family. The advice given by the respondent, the preparation and acknowledgment
by him of the contract constitute malpractice which justifies disbarment from the practice of law. The
admission of a lawyer to the practice of law is upon the implied condition that his continued
enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to
society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to
be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the
enjoyment of this professional privilege should be declared terminated. In the present case,
respondent was either ignorant of the applicable provision of the law or carelessly negligent in giving
the complainant legal advice. Drastic action should lead to his disbarment and this is the opinion of
some members of the court. The majority, however, have inclined to follow the recommendation of
the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of
said investigator and the fact that immediately after discovering his mistakes, respondent
endeavored to correct it by making the parties sign another document cancelling the previous one.

The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the
practice of law for a period of one year. So ordered.

A.M. No. 804-CJ May 19, 1975

SATURNINO SELANOVA, complainant,

vs.
ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.

RESOLUTION

AQUINO, J.: ñé+.£ªw ph!1

Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of
the law for having prepared and ratified a document dated November 21, 1972, extrajudicially
liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza. One condition of
the liquidation was that either spouse (as the case may be) would withdraw the complaint for
adultery or concubinage which each had filed against the other and that they waived their "right to
prosecute each other for whatever acts of infidelity" either one would commit against the other.

Judge Mendoza in his comment on the charge purposed to convey the impression that he was
aware of the invalidity of the agreement but he nevertheless ratified it and gave it his nihil obstat on
the assurance of the spouses that they would ask the Court of First Instance of Negros Oriental
(where they were residing) to approve the agreement. That pretension is disbelieved by the Judicial
Consultant.

Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree
upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval"
(Par. 4, Art. 191, Civil Code).

He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership
during the marriage "an unqualified and literal legal construction" would lender nugatory the
aforequoted provisions of article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L-23767 and
L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an extrajudicial agreement
for the dissolution during the marriage of the conjugal partnership as long as the agreement is
subsequently approved by the court.
However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that
judicial sanction for the dissolution of the conjugal partnership during the marriage should be
"secured beforehand."

Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was
adversely decided by the Judge. That speculation was denied by Selanova who also belied Judge
Mendoza's version that the complainant and his wife, Avelina Ceniza, "together with their parents",
came to the office of Judge Mendoza and solicited his help in the amicable settlement of their marital
imbroglio.

According to Selanova, in 1972 his father was already dead and his mother was ninety-one years
old. They could not possibly have come to Judge Mendoza's office. Selanova said that only he and
his brother-in-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the persons who
went to the Judge's office. But that version may be inaccurate and oversimplified, considering that
the agreement was signed before Judge Mendoza not only by Selanova but also by his wife and two
witnesses, Lamberts M. Ceniza and Florencio C. Pono.

Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of
April 8, 1975 he asked for a compassionate view of his case considering his forty-three years'
service in the government (he started his public career in 1932 as a policeman and became a justice
of the peace in 1954). He also cited the financial predicament of his big family occasioned by the
delay in the payment of his retirement and terminal leave pay.

The case was not referred to a Judge of the Court of First Instance for investigation because actually
no factual issues necessitate a hearing and presentation of evidence. Respondent Judge admitted
that he was responsible for the execution of the questioned document, an extrajudicial "Liquidation
of Conjugal Properties", which he caused complainant Saturnino Selanova and his wife, Avelina
Ceniza, to sign.

In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by
allocating to the husband a thirteen-hectare riceland and to the wife the residential house and lot.
The last paragraph of the instrument, which licensed either spouse to commit any act of infidelity,
was in effect a ratification of their personal separation. The agreement in question is void because it
contravenes the following provisions of the Civil Code: têñ.£îhqwâ£

ART. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

(2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal
partnership of gains or of the absolute community of property between husband and
wife;

xxx xxx xxx

Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of
the conjugal partnership without judicial approval was void (Quintana vs. Lerma, 24 Phil. 285; De
Luna vs. Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP Digest 171,
sec. 29).
On the other hand, disciplinary action had been taken against notaries who authenticated
agreements for the personal separation of spouses wherein either spouse was permitted to commit
acts of infidelity.

Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having
notarized a document containing "an agreement between the husband and the wife which permitted
the husband to take unto himself a concubine and the wife to live in adulterous relationship with
another man, without opposition from either one of them". The document was prepared by another
person.

In that case this Court noted that while adultery and concubinage are private crimes, "they still
remain crimes" and a contract legalizing their commission is "contrary to law, morals and public
order, and as a consequence not judicially recognizable". Since the notary's commission was
already revoked, this Court did not disbar him. The fact that he "may not have realized the full
purport of the document to which he took acknowledgment' was considered mitigating.

Severe censure was also administered to a notary of Cebu City who ratified a document entitled
"Legal Separation", executed by husband and wife, wherein they agreed that they separated
mutually and voluntarily, that they renounced their rights and obligations, and that they authorized
each other to remarry, renouncing any action to which they might be entitled and each promising not
to be a witness against the other. Those covenants are contrary to law, morals and good customs
and tend to subvert the vital foundation of the legitimate family (Biton vs. Momongon, 62 Phil. 7).

In the Santiago case respondent lawyer prepared for a married couple (who had been separated for
nine years) a document wherein it was stipulated, inter alia, that they authorized each other to marry
again, at the same time renouncing whatever right of action one might have against the other. When
the husband inquired if there would be no trouble, respondent lawyer pointed to his diploma which
was hanging on the wall and said: "I would tear that off if this document turns out not to be valid."
The husband remarried. The respondent was suspended from the practice of law for one year for
having been ignorant of the law or being careless in giving legal advice (In re Santiago, 70 Phil. 66).

In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he
declared that he was married to Vertudes Marquez, from whom he had been separated, their
conjugal partnership having been dissolved, and that he was consorting with Regina S. Balinon his
"new found life-partner," to whom he would "remain loyal and faithful" "as a lawful and devoted
loving husband for the rest of" his life "at all costs". Attorney Justo T. Velayo notarized that affidavit.
This Court reprimanded Velayo and suspended De Leon from the practice of law for three years.

In the instant case, respondent Judge, due to his unawareness of the legal prohibition against
contracts for the personal separation of husband and wife and for the extrajudicial dissolution of their
conjugal partnership, prepared the said void agreement which was acknowledged before him as
"City Judge and Notary Public Ex-Officio". (Because he was admitted to the bar in 1948 and,
consequently, he did not study the new Civil Code in the law school, he might not have been
cognizant of its aforecited article 221).

Taking into account that circumstance and his apparent good faith and honest desire to terminate
the marital conflict between the complainant and his wife, we are of the opinion that a drastic penalty
should not be imposed on him. But he deserves a severe censure for his mistake in preparing and
notarizing the aforementioned immoral and illegal agreement. Such severe reprimand should not be
an obstacle to his enjoyment of retirement privileges, assuming that there are no causes for
depriving him of such benefits.
WHEREFORE, the respondent is severely censured.

G.R. No. 80965 June 6, 1990

SYLVIA LICHAUCO DE LEON, petitioner,

vs.
THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE
LEON, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.

De Jesus & Associates for Macaria de Leon.

Quisumbing, Torres & Evangelista for Jose Vicente de Leon.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No. 06649 dated June 30, 1987 the decision
of the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and its resolution dated November 24, 1987 denying
the motion for reconsideration.

The antecedent facts are as follows:

On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De
Leon were united in wedlock before the Municipal Mayor of Binangonan, Rizal. On August 28, 1971,
a child named Susana L. De Leon was born from this union.

Sometime in October, 1972, a de facto separation between the spouses occured due to
irreconcilable marital differences, with Sylvia leaving the conjugal home. Sometime in March, 1973,
Sylvia went to the United States where she obtained American citizenship.

On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a
petition for dissolution of marriage against Jose Vicente. In the said divorce proceedings, Sylvia also
filed claims for support and distribution of properties. It appears, however, that since Jose Vicente
was then a Philippine resident and did not have any assets in the United States, Sylvia chose to hold
in abeyance the divorce proceedings, and in the meantime, concentrated her efforts to obtain some
sort of property settlements with Jose Vicente in the Philippines.

Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-
law, private respondent Macaria De Leon, which We quote in full, as follows (pp. 40-42, Rollo):

March 16, 1977

Mrs. Macaria Madrigal de Leon

12 Jacaranda, North Forbes Park
Makati, Metro Manila

Dear Dora Macaria:

This letter represents a contractual undertaking among (A) the undersigned (B) your
son, Mr. Jose Vicente de Leon, represented by you, and (C) yourself in your personal
capacity.

You hereby bind yourself jointly and severally to answer for the undertakings of Joe
Vincent under this contract.

In consideration for a peaceful and amicable termination of relations between the

undersigned and her lawfully wedded husband, Jose Vicente de Leon, your son, the
following are agreed upon:

Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity:

1. To deliver with clear title free from all liens and encumbrances and subject to no
claims in any form whatsoever the following properties to Sylvia Lichauco-de Leon
hereinafter referred to as the wife:

A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong,
Rizal, Philippines.

B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines.

C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q.
meters each). (Fully paid).

D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22
Westborough Unit No. 2). (Fully paid).

E. 1) The sum of One Hundred Thousand Pesos (P100,000)

2) $30,000

3) $5,000

2. To give monthly support payable six (6) months in advance every year to any
designated assignee of the wife for the care and upbringing of Susana Lichauco de
Leon which is hereby pegged at the exchange rate of 7.50 to the dollar subject to
adjustments in the event of monetary exchange fluctuations. Subsequent increase on
actual need upon negotiation.

3. To respect the custody of said minor daughter as pertaining exclusively to the wife
except as herein provided.

Obligations of the wife:

1. To agree to a judicial separation of property in accordance with Philippine law and

in this connection to do all that may be necessary to secure said separation of
property including her approval in writing of a joint petition or consent decree.

2. To amend her complaint in the United States before the Federal Court of
California, U.S.A. entitled "Sylvia Lichauco de Leon vs. Jose V. de Leon" in a manner
 compatible with the objectives of this herein agreement. It is the stated objective of
this agreement that said divorce proceedings will continue.

3. All the properties herein described for assignment to the wife must be assigned to
Sylvia Lichauco de Leon upon the decree of the Court of First Instance in the Joint
Petition for Separation of Property; except for the P100,000, $30,000 and $5,000
which will be paid immediately.

4. This contract is intended to be applicable both in the Republic of the Philippines

and in the United States of America. It is agreed that this will constitute an actionable
document in both jurisdictions and the parties herein waive their right to object to the
use of this document in the event a legal issue should arise relating to the validity of
this document. In the event of a dispute, this letter is subject to interpretation under
the laws of California, U.S.A.

5. To allow her daughter to spend two to three months each year with the father upon
mutual convenience.

Very truly yours,

(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON

CONFORME:
s/t/MACARIA M. DE LEON
with my marital consent:
s/t/JUAN L. DE LEON

On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and
US$35,000.00 or P280,000.00, in compliance with her obligations as stipulated in the aforestated
Letter-Agreement.

On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a
joint petition for judicial approval of dissolution of their conjugal partnership, the main part of which
reads as follows (pp. 37-38, Rollo):

5. For the best interest of each of them and of their minor child, petitioners have
agreed to dissolve their conjugal partnership and to partition the assets thereof,
under the following terms and conditions-this document, a pleading being intended
by them to embody and evidence their agreement:

xxx xxx xxx

(c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De

Leon. These properties will be free of any and all liens and encumbrances, with clear
title and subject to no claims by third parties. Petitioner Jose Vicente De Leon fully
assumes all responsibility and liability in the event these properties shall not be as
described in the previous sentence:

Sedan (1972 model)

 Suite 11-C, Avalon Condominium,
Ortigas Ave., comer Xavier St.,
Mandaluyong, Rizal, Philippines

Apt. 702, Wack-Wack Condominium,

Mandaluyong, Rizal, Philippines

The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters
each) (Fully paid)

2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22
Westborough Unit 2) (Fully paid)

The sum of One Hundred Thousand Pesos (P100,000.00)

$30,000.00 at current exchange rate

$5,000.00 at current exchange rate

After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the
petition, the dispositive portion of which reads (p. 143, Rollo):

WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is

DISSOLVED henceforth, without prejudice to the terms of their agreement that each
spouse shall own, dispose of, possess, administer and enjoy his or her separate
estate, without the consent of the other, and all earnings from any profession,
business or industries shall likewise belong to each spouse.

On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose
Vicente moved for a reconsideration of the order alleging that Sylvia made a verbal reformation of
the petition as there was no such agreement for the payment of P4,500.00 monthly support to
commence from the alleged date of separation in April, 1973 and that there was no notice given to
him that Sylvia would attempt verbal reformation of the agreement contained in the joint petition

While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed
with the trial court a motion for leave to intervene alleging that she is the owner of the properties
involved in the case. The motion was granted. On October 29, 1980, Macaria, assisted by her
husband Juan De Leon, filed her complaint in intervention. She assailed the validity and legality of
the Letter-Agreement which had for its purpose, according to her, the termination of marital
relationship between Sylvia and Jose Vicente. However, before any hearing could be had, the
judicial reorganization took place and the case was transferred to the-Regional Trial Court of Pasig.
On December 29, 1983, the trial court rendered judgment, the dispositive portion of which reads (pp.
35-36, Rollo):

WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor

of the intervenor, declaring null and void the letter agreement dated March 16, 1977
(Exhibits 'E' to 'E-2'), and ordering petitioner Sylvia Lichauco De Leon to restore to
intervenor the amount of P380,000.00 plus legal interest from date of complaint, and
to pay intervenor the amount of P100,000.00 as and for attorney's fees, and to pay
the costs of suit.
 Judgment is likewise rendered affirming the order of the Court dated February 19,
1980 declaring the conjugal partnership of the spouses Jose Vicente De Leon and
Sylvia Lichauco De Leon DISSOLVED; and adjudicating to each of them his or her
share of the properties and assets of said conjugal partnership in accordance with
the agreement embodied in paragraph 5 of the petition, except insofar as the
adjudication to petitioner Sylvia L. De Leon of the properties belonging to and owned
by Intervenor Macaria De Leon is concerned.

Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy
his or her separate estate, present and future without the consent of the other; (b) an
earnings from any profession, business or industry shall likewise belong to each of
them separately; (c) the minor child Susana De Leon shall stay with petitioner Sylvia
Lichauco De Leon for two to three months every year-the transportation both ways of
the child for the trip to the Philippines to be at the expense of the petitioner Jose
Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give petitioner Sylvia
Lichauco De Leon the sum of P4,500.00 as monthly support for the minor child
Susana to commence from February 19, 1980.

Sylvia appealed to the respondent Court of Appeals raising the following errors:

1) The trial court erred in finding that the cause or consideration of the Letter- Agreement is the
termination of marital relations;

2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de
Leon's claims of threat, intimidation and mistake are baseless; and

3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-
Agreement; and further, failed to appreciate evidence proving Macaria de Leon's material breach
thereof.

The respondent court affirmed the decision in toto. The motion for reconsideration was denied.
Hence, the present petition.

The only basis by which Sylvia may lay claim to the properties which are the subject matter of the
Letter-Agreement, is the Letter-Agreement itself. The main issue, therefore, is whether or not the
Letter-Agreement is valid. The third paragraph of the Letter-Agreement, supra, reads:

In consideration for a peaceful and amicable termination of relations between the

undersigned and her lawfully wedded husband, Jose Vicente De Leon, your son, the
following are agreed upon: (emphasis supplied)

It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to
interpretation. There being a doubt as to the meaning of this word taken by itself, a consideration of
the general scope and purpose of the instrument in which it occurs (see Germann and Co. v.
Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil Code which provides that the
various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly, is necessary.

Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of
property relations with her husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint
petition for judicial approval of the dissolution of their conjugal partnership, sanctioned by Article 191
of the Civil Code. On the other hand, Macaria and Jose Vicente assert that the consideration was
the termination of marital relationship.

We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo):

On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to
agree to a judicial separation of property of the spouses but likewise to continue with
divorce proceedings (paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If
taken with the apparently ambiguous provisions in Exhibit E' regarding termination of
'relations', the parties clearly contemplated not only the termination of property
relationship but likewise of marital relationship in its entirety. Furthermore, it would be
safe to assume that the parties in Exhibit 'E' not having specified the particular
relationship which they wanted to peacefully and amicably terminate had intended to
terminate all kinds of relations, both marital and property. While there could be
inherent benefits to a termination of conjugal property relationship between the
spouses, the court could not clearly perceive the underlying benefit for the intervenor
insofar as termination of property relationship between petitioners is concerned,
unless the underlying consideration for intervenor is the termination of marital
relationship by divorce proceedings between her son Jose Vicente and his wife
petitioner Sylvia. The last sentence of paragraph 2 under "Obligations of the Wife"
unequivocally states: "It is the stated objective of this agreement that said divorce
proceedings (in the United States) will continue. "There is merit in concluding that the
consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom
for her son petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which
is (sic) agreement signed by petitioner Sylvia to consent to and pardon Jose Vicente
De Leon for adultery and concubinage (among others) would be considered. In the
light, therefore, of the foregoing circumstances, this Court finds credible the
testimony of intervenor as follows:

Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting
of three pages and inform us whether or not this is the letter of March
16, 1977 which you just referred to?

A Yes, this is the letter.

Why did you affix your signature to this Exh. 'E'-intervenor (sic)?

A Because at that time when I signed it I want to buy peace for myself
and for the whole family.

Q From whom did you want to buy peace and/or what kind of peace?

A I wanted to buy peace from Sylvia Lichauco whom I knew was kind
of 'matapang;' so I want peace for me and primarily for the peaceful
and amicable termination of marital relationship between my son, Joe
Vincent and Sylvia. (Deposition dated September 6, 1983-Macaria de
Leon, p. 6-7)

This Court, therefore, finds and holds that the cause or consideration for the
intervenor Macaria De Leon in having executed Exhibits 'E' to 'E-2' was the
termination of the marital relationship between her son Jose Vicente De Leon and
Sylvia Lichauco de Leon.
 Article 1306 of the New Civil Code provides:

Art. 1306. The contracting parties may establish such stipulations, clauses, terms,
and conditions as they may deem convenient, provided they are not contrary to law,
morals, good customs, public order or public policy.

If the stipulation is contrary to law, morals or public policy, the contract is void and
inexistent from the beginning.

Art. 1409. The following contracts are inexistent and void from the beginning:

Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;

xxx xxx xxx

(7) Those expressly prohibited or declared void by law.

These contracts cannot be ratified. Neither can the right to set up the defense of
illegality be waived.

But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of
the Civil Code provides:

Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature,
consequences and incidents are governed by law and not subject to stipulations...

From the foregoing provisions of the New Civil Code, this court is of the considered
opinion and so holds that intervenor's undertaking under Exhibit 'E' premised on the
termination of marital relationship is not only contrary to law but contrary to Filipino
morals and public Policy. As such, any agreement or obligations based on such
unlawful consideration and which is contrary to public policy should be deemed null
and void. (emphasis supplied)

Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not
those belonging to a third party, who, in the case at bar., is Macaria. In the petition for the dissolution
of the conjugal partnership, it was made to appear that the said properties are conjugal in nature.
However, Macaria was able to prove that the questioned properties are owned by her. Neither Sylvia
nor Jose Vicente adduced any contrary evidence.

Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of
property relations, We agree with the respondent court that (pp. 46-47, Rollo):

... the agreement nevertheless is void because it contravenes the following

provisions of the Civil Code:
 Art. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

(2) Every extra-judicial agreement, during marriage, for the dissolution of the
conjugal partnership of gains or of the absolute community of property between
husband and wife;

Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard,
the ambiguity in a contract is to be taken contra proferentem, i.e., construed against the party who
caused the ambiguity and could have also avoided it by the exercise of a little more care. Thus,
Article 1377 of the Civil Code provides: "The interpretation of obscure words of stipulations in a
contract shall not favor the party who caused the obscurity" (see Equitable Banking Corp. vs. IAC,
G.R. No. 74451, May 25, 1988, 161 SCRA 518).

Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful
consideration solely of Macaria, applying the pari delicto rule, it is clear that she cannot recover what
she has given by reason of the Letter-Agreement nor ask for the fulfillment of what has been
promised her. On her part, Macaria raises the defenses of intimidation and mistake which led her to
execute the Letter-Agreement. In resolving this issue, the trial court said (pp. 148-151, Rollo):

In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E-
2' was due to a fear of an unpeaceful and troublesome separation other son with
petitioner Sylvia Lichauco de Leon. In support of her claim, intervenor testified as
follows:

Q Will you please inform us how did Sylvia Lichauco disturb or

threaten your son or yourself?

A Despite the fact that Sylvia Lichauco voluntarily left my son Joe
Vincent and abandoned him, she unashamedly nagged Joe and me
to get money and when her demands were not met she resorted to
threats like, she threatened to bring Joe to court for support. Sylvia
threatened to scandalize our family by these baseless suits; in fact
she caused the service of summons to Joe when he went to the
United States. (Intervenor's deposition dated Sept. 6, 1983, p. 8).

On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose
Vicente who initiated the move to convince her to agree to a dissolution of their
conjugal partnership due to the alleged extra-marital activities of petitioner Jose
Vicente de Leon. She testified as follows:

Q Now in her testimony, Macaria Madrigal de Leon also said that you
threatened her by demanding money and nagged her until she
agreed to the letter agreement of March 1977, what can you say
about that?

A I think with all the people sitting around with Atty. Quisumbing, Atty.
Chuidian, my father-in-law, my sister-in-law and I, you know, it can be
shown that this was a friendly amicable settlement that they were
much really interested in settling down as I was. I think there were
certain reasons that they wanted to get done or planned, being at that
 time Jose was already remarried and had a child. That since she then
found out that since she was worried about what might be, you know,
involved in any future matters. She just wanted to do what she could.
She just want me out of the picture. So in no way, it cannot be said
that I nagged and threatened her. (TSN dated December 8, 1983, p.
137-138)

In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor, which was
not controverted by petitioner Sylvia. A reading of Exhibit 'R' would show that
petitioner Sylvia would consent to and pardon petitioner Jose Vicente, son of
intervenor, for possible crimes of adultery and/or concubinage, with a sizing
attached; that is, the transfer of the properties subject herein to her. There appears
some truth to the apprehensions of intervenor for in petitioner Sylvia's testimony she
confirms the worry of intervenor as follows:'... being at that time Jose (De Leon) was
already remarried and had a child. That since she (intervenor) found out that, she
was worried about what might be, you know, involved in any future matters. She just
want me out of the picture." The aforesaid fear of intervenor was further corroborated
by her witness Concepcion Tagudin who testified as follows:

Q Now, you mentioned that you were present when Mrs. Macaria De
Leon signed this Exhibit 'E-2, ' will you inform us whether there was
anything unusual which you noticed when Mrs. Macaria M. De Leon
signed this Exhibit 'E-2'?

A Mrs. Macaria M. De Leon was in a state of tension and anger. She

was so mad that she remarked: 'Punetang Sylvia ito bakit ba niya ako
ginugulo. Ipakukulong daw niya si Joe Vincent kung hindi ko
pipirmahan ito. Sana matapos na itong problemang ito pagkapirmang
ito,' sabi niya.' (Deposition-Concepcion Tagudin, Oct. 21, 1983, pp.
10-11)

In her third cause of action, intervenor claims mistake or error in having signed
Exhibits '1' to 'E-2' alleging in her testimony as follows:

Q Before you were told such by your lawyers what if any were your
basis to believe that Sylvia would no longer have inheritance rights
from your son, Joe Vincent?

A Well, that was what Sylvia told me. That she will eliminate any
inheritance rights from me or my son Joe Vincent's properties if I sign
the document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp.
9-10).

On the other hand, petitioner Sylvia claims that intervenor could not have been
mistaken in her having signed the document as she was under advice of counsel
during the time that Exhibits 'E' to 'E-2' was negotiated. To support such claims by
Sylvia Lichauco De Leon, the deposition testimony of Atty. Vicente Chuidian was
presented before this Court:

Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would

you be able to tell us in what capacity he was present in that
negotiation?
 Atty. Chuidian: He was counsel for Dona Macaria and for Joe
Vincent, the spouse of Sylvia. (Deposition of V. Chuidian, December
16, 1983, p. 8)

The New Civil Code provides:

Art. 1330. A contract where consent is given through mistake, violence, intimidation,
undue influence or fraud is voidable.

Art. 1331. In order that mistake may invalidate consent, it should refer to the
substance of the thing which is the object of the contract, or to those conditions
which have principally moved one or both parties to enter into a contract. ...

The preponderance of evidence leans in favor of intervenor who even utilized the
statement of the divorce lawyer of petitioner Sylvia (Mr. Penrod) in support of the fact
that intervenor was mistaken in having signed Exhibits 'E' to 'E-2' because when she
signed said Exhibits she believed that fact that petitioner Sylvia would eliminate her
inheritance rights and there is no showing that said intervenor was properly advised
by any American lawyer on the fact whether petitioner Sylvia, being an American
citizen, could rightfully do the same. Transcending, however, the issue of whether
there was mistake of fact on the part of intervenor or not, this Court could not. see a
valid cause or consideration in favor of intervenor Macaria De Leon having signed
Exhibits 'E' to 'E-2.' For even if petitioner Sylvia had confirmed Mr. Penrod's
statement during the divorce proceedings in the United States that she would
undertake to eliminate her hereditary rights in the event of the property settlement,
under Philippine laws, such contract would likewise be voidable, for under Art. 1347
of the New Civil Code 'no contract may be entered into upon future inheritance.

We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides:

xxx xxx xxx

There is intimidation when one of the contracting parties is compelled by a

reasonable and well-grounded fear of an imminent and grave evil upon his person or
property, or upon the person or property of his spouse, descendants or ascendants,
to give his consent.

To determine the degree of the intimidation, the age, sex and condition of the person
shall be borne in mind.

A threat to enforce one's claim through competent authority, if the claim is just or
legal, does not vitiate consent.

In order that intimidation may vitiate consent and render the contract invalid, the following requisites
must concur: (1) that the intimidation must be the determining cause of the contract, or must have
caused the consent to be given; (2) that the threatened act be unjust or unlawful; (3) that the threat
be real and serious, there being an evident disproportion between the evil and the resistance which
all men can offer, leading to the choice of the contract as the lesser evil; and (4) that it produces a
reasonable and well-grounded fear from the fact that the person from whom it comes has the
necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case,
the claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to
scandalize their family by baseless suits and that Sylvia would pardon Jose Vicente for possible
crimes of adultery and/or concubinage subject to the transfer of certain properties to her, is obviously
not the intimidation referred to by law. With respect to mistake as a vice of consent, neither is
Macaria's alleged mistake in having signed the Letter-Agreement because of her belief that Sylvia
will thereby eliminate inheritance rights from her and Jose Vicente, the mistake referred to in Article
1331 of the Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her
inheritance rights" principally moved Macaria to enter into the contract. Rather, such condition was
but an incident of the consideration thereof which, as discussed earlier, is the termination of marital
relations.

In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari
delicto rule, expressed in the maxims "Ex dolo malo non oritur actio" and "In pari delicto potior est
conditio defendentis," which refuses remedy to either party to an illegal agreement and leaves them
where they are, does not apply in this case. Contrary to the ruling of the respondent Court that (pp.
47-48, Rollo):

... [C]onsequently, intervenor appellees' obligation under the said agreement having
been annulled, the contracting parties shall restore to each other that things which
have been subject matter of the contract, their fruits and the price or its interest,
except as provided by law (Art. 1398, Civil Code).

Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be
applied. It provides:

When money is paid or property delivered for an illegal purpose, the contract may be
repudiated by one of the parties before the purpose has been accomplished, or
before any damage has been caused to a third person. In such case, the courts may,
if the public interest wig thus be subserved, allow the party repudiating the contract to
recover the money or property.

Since the Letter-Agreement was repudiated before the purpose has been accomplished and to
adhere to the pari delicto rule in this case is to put a premium to the circumvention of the laws,
positive relief should be granted to Macaria. Justice would be served by allowing her to be placed in
the position in which she was before the transaction was entered into.

With the conclusions thus reached, We find it unnecessary to discuss the other issues raised.

ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals
dated June 30, 1987 and its resolution dated November 24, 1987 are AFFIRMED.

SO ORDERED.

LAW GOVERNING VALIDITY

REPUBLIC OF THE PHILIPPINES, G.R. No. 154380

Petitioner,

Present:
 Davide, Jr., C.J.,

- versus - (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
Commented [i4]: at the time of the celebration of the
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him marriage, the parties were Filipino citizens, but later on, one
of them obtains a foreign citizenship by naturalization

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

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 Decisiondated 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.

SO ORDERED.

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.

REDERICK A. RECIO, respondent.

DECISION
PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and the
governing personal law of the alien spouse who obtained the divorce must be proven. Our courts
do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the
divorce decree and the national law of the alien must be alleged and proven according to our law
on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:

WHEREFORE, this Court declares the marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved
and both parties can now remarry under existing and applicable laws to any and/or
both parties.[3]

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in

Malabon, Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On
May 18, 1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of
Australian Citizenship issued by the Australian government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
City.[7] In their application for a marriage license, respondent was declared as single and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.[9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage [10] in
the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage
at the time he married her on January 12, 1994.She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
 In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in
1989;[12] thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit for the
declaration of nullity was pending -- respondent was able to secure a divorce decree from a family
court in Sydney, Australia because the marriage ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated
no cause of action.[14]The Office of the Solicitor General agreed with respondent.[15] The court
marked and admitted the documentary evidence of both parties.[16] After they submitted their
respective memoranda, the case was submitted for resolution.[17]
Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in
Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on
the basis of any defect in an essential element of the marriage; that is, respondents alleged lack of
legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more marital union
to nullify or annul.
Hence, this Petition.[18]

Issues

Petitioner submits the following issues for our consideration:

1

The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2

The failure of the respondent, who is now a naturalized Australian, to present a

certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40,
52 and 53 of the Family Code as the applicable provisions in this case.
5

The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our
courts.[19]

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2)
whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling
on these two, there is no more necessity to take up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a Filipino
and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her
to remarry.[26] A divorce obtained abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective national laws.[27]
A comparison between marriage and divorce, as far as pleading and proof are concerned, can
be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law.[28] Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove
the divorce as a fact and demonstrate its conformity to the foreign law allowing it. [29]Presentation
solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply
with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles
read as follows:

ART. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar
which shall specify the following:

xxxxxxxxx

(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;

xxxxxxxxx

ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to

ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse or
the judicial decree of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons.

Respondent, on the other hand, argues that the Australian divorce decree is a public document
-- a written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
 Respondent is getting ahead of himself. Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and admitted in evidence.[30] A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is
the judgment itself.[31] The decree purports to be a written act or record of an act of an official body
or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be
proven as a public or official record of a foreign country by either (1) an official publication or (2)
a copy thereof attested[33] by the officer having legal custody of the document. If the record is not
kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court.[35] However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted
in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City.[36] The trial court ruled that it
was admissible, subject to petitioners qualification.[37] Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of adopting an alien and clothing him with the
political and civil rights belonging to a citizen.[40] Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that petitioner
was satisfied with the original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a long time. Besides, the
Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial
notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the existence of a
fact or thing necessary in the prosecution or defense of an action. [41] In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations in their answer when
they introduce new matters.[42] Since the divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign
laws.[43] Like any other facts, they must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by reason of their judicial function.[44] The
power of judicial notice must be exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce
or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves
the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured
by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no reconciliation
is effected.[46]
Even after the divorce becomes absolute, the court may under some foreign statutes and
practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be
prohibited from marrying again. The court may allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree becomes absolute (unless the other
party has died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of
evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption
or presumptive evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court,
for the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
 Petitioner argues that the certificate of legal capacity required by Article 21 of the Family
Code was not submitted together with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national
law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have
been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on
the part of the alien applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that proves respondents legal capacity to
marry petitioner. A review of the records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia
(Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of
Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1,
1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A. Recio and Editha D. Samson
was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56](b) Exhibit 2 Family Law Act
1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;[57] (c) Exhibit 3
Certificate of Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since
October 22, 1995.[60]
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioners contention that the court a quo erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient
evidence to show the Australian personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null and void on
the ground of bigamy.After all, it may turn out that under Australian law, he was really capacitated
to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most
judicious course is to remand this case to the trial court to receive evidence, if any, which show
petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may declare a
nullity of the parties marriage on the ground of bigamy, there being already in evidence two
existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro
Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quofor the purpose of receiving evidence which conclusively show respondents
legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.
Republic v Manalo – pdf file
Sison v Te Jay Li

G.R. No. L-8014 March 14, 1955

PEDRO V. VILAR, petitioner-appellant,

vs.
GAUDENCIO V. PARAISO, respondent-appellant.

Claro M. Recto and Jose Nava for petitioner-appellant.

Josefina R. Phodaca and Naomi P. Salvador for respondent-appellant.

BAUTISTA ANGELO, J.:

In the general elections held on November 13, 1951, Pedro V. Vilar and Gaudencio V. Paraiso were
among the candidates registered and voted for the office of mayor of Rizal, Nueva Ecija. after the
canvass was made, Vilar obtained 1,467 votes while Paraiso garnered 1,509, and as a result the
municipal board of canvassers proclaimed the latter as the mayor duly elected with a plurality of 41
votes. However, contending that Paraiso was ineligible to hold office as mayor because he was then
a minister of the United Church of Christ in the Philippines and such was disqualified to be a
candidate under section 2175 of the Revised Administrative Code, Vilar instituted the present quo
warranto proceedings praying that Paraiso be declared ineligible to assume office and that his
proclamation as mayor-elect be declared null and void. He also prayed that he be declared duly
elected mayor of Rizal, Nueva Ecija, in lieu of respondent Paraiso.

Respondent in his answer denied his ineligibility and claimed that he resigned as minister of the
United Church of Christ in the Philippines on August 21, 1951, that his resignation was accepted by
the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951, and that
even if respondent was not eligible to the office, petitioner could not be declared elected to take his
place.

After due trial, the court found respondent to be ineligible for the office of mayor, being an
ecclesiastic, and, consequently, it declared his proclamation as mayor null and void, but refrained
from declaring petitioner as mayor-elect for lack of sufficient legal grounds to do so. from this
election both parties have appealed, respondent from that portion finding him ineligible, and
petitioner from that portion holding he cannot be declared elected as mayor for lack of sufficient legal
grounds to do so.

The case was originally taken to the Court of Appeals. However, as the latter court found that while
petitioner raises in his brief only questions of law respondent raises both questions of law and fact,
and both appeals are indivisible in that they pertain to only one case, that court resolved to certify it
to this Court pursuant to the provisions of sections 17 and 31 of the Judiciary Act of 1948, upon the
theory that one of the appeals is exclusively cognizable by the Supreme Court.

The only issue before us is whether respondent, being an ecclesiastic, is ineligible to hold office
under section 2175 of the Revised Administrative Code, or whether he actually resigned as minister
before the date of the elections, and his resignation duly accepted, as claimed, thereby removing his
disability. As may be noted, this is a question of fact the determination of which much depends upon
the credibility and weight of the evidence of both parties.
The evidence for petitioner tends to show that respondent was ordained as minister of the
Evangelical Church of the Philippines in 1944 and as such was given license to solemnize marriages
by the Bureau of Public Libraries; that since 1944 up to 1950 he acted as minister in the town of
Rizal, Nueva Ecija, continuously and without interruption and has been renewing his license to
solemnize marriages as prescribed by the regulations of the Bureau of Public Libraries; that on April
19, 1950, respondent transferred to the United Church of Christ in the Philippines, having been
assigned to work in the same place and chapel during the years 1944-1950; that on April 7, 1951,
respondent applied for, and was issued, a license to solemnize marriages by the Bureau of Public
Libraries as minister of the new church up to the end of April, 1952; that said license has never been
cancelled, as neither the head of the united church nor respondent has requested for its
cancellation; and that respondent has been publicly known as minister of the United Church of
Christ, but he has not attached to his certificate of candidacy a copy of his alleged resignation as
minister.

The evidence for the respondent, on the other hand, tends to show that while he was formerly a
minister of the United of Christ in the Philippines, he, however, filed his resignation as such minister
on August 21, 1951, because of his desire to engage in politics; that said resignation was accepted
by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951; that
respondent turned over his chapel and his office to the elder members of his religious order on
August 21, 1951, and since then he considered himself separated from his order and in fact he has
refrained ever since from conducting any religious services pertaining to that order.

Which of these versions is correct?

After careful examining the evidence of record, and after weighing its credibility and probative value,
we have not found any reason for deviating from the finding of the trial court that respondent never
ceased as minister of the order to which he belonged and that the resignation he claims to have filed
months before the date of the elections is but a mere scheme to circumvent the prohibition of the law
regarding ecclesiastics who desire to run for a municipal office. Indeed, if respondent really and
sincerely intended to resign as minister of the religious organization to which he belonged for the
purpose of launching his candidacy why did he not resign in due form and have the acceptance of
his resignation registered with the Bureau of Public Libraries.1 The importance of resignation cannot
be underestimated. The purpose of registration is two-fold: to inform the public not only of the
authority of the minister to discharge religious functions, but equally to keep it informed of any
change in his religious status. This information is necessary for the protection of the public. This is
specially so with regard to the authority to solemnized marriages, the registration of which is made
by the law mandatory (Articles 92-96, new Civil Code). It is no argument to say that the duty to
secure the cancellation of the requisite resignation devolves, not upon respondent, but upon the
head of his organization or upon the official in charge of such registration, upon proper showing of
the reason for such cancellation, because the law likewise imposes upon the interested party the
duty of effecting such cancellation, who in the instant case is the respondent himself. This he failed
to do. And what is more, he failed to attach to his certificate of candidacy, a copy of his alleged
resignation as minister knowing full well that a minister is disqualified by law to run for a municipal
office.

It is true that respondent attempted to substantiate his claim by submitting as evidence certain
documents purporting to show the alleged resignation and its acceptance by the cabinet of his
church at a meeting held on August 27, 1951, but, considering said documents in the light of the
shortcomings we have pointed out above, one cannot help but brand them as self-serving or as
documents merely prepared to serve the political designs of respondent in an attempt to obviate his
disqualification under the law. And this feeling appears strengthened if we examine the so-called
minute book wherein, according to witness Jose Agpalo, are entered the minutes of all the meeting
of the church, because upon an examination thereof one would at once get the impression that it
was prepared haphazardly and not with such seriousness and solemnity that should characterize the
religious activities of a well established religious order. As the trial court aptly remarked "All these
lead the court to believe with the petitioner, that the supposed resignation and acceptance were
made at a later date to cure the ineligibility of the respondent." We are therefore constrained to hold
that respondent is disqualified to hold the office of mayor as found by the trial court.

As to the question whether, respondent being ineligible, petitioner can be declared elected, having
obtained second place in the elections, our answer is simple: this Court has already declared that
this cannot be done in the absence of an express provision authorizing such declaration. Our law not
only does not contain any such provision but apparently seems to prohibit it. This is what we said in
at least two cases where we laid down a ruling which is decisive of the present case.

. . . . In the first case when the person elected is ineligible, the court cannot declare that the
candidate occupying the second place has been elected, even if he were eligible, since the
law only authorizes a declaration of election in favor of the person who has obtained a
plurality of votes, and has presented his certificate of candidacy. (Nuval vs. Guray, 52 Phil.,
645.)

Section 173 of Republic Act No. 180 known as the Revised Election Code, does not provide
that if the contestee is declared ineligible the contestant will be proclaimed. Indeed it may be
gathered that the law contemplates no such result, because it permits the filing of the contest
by any registered candidate irrespective of whether the latter occupied the next highest place
or the lowest in the election returns. (Llamoso vs. Ferrer, et al., 84 Phil., 489, 47 Off. Gaz.,
[No. 2] p. 727.)

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

[A.M. No. MTJ-02-1390. April 11, 2002]

MERCEDITA MATA ARAES, petitioner, vs. JUDGE SALVADOR M.

OCCIANO, respondent.

DECISION
PUNO, J.:

Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of
the Law via a sworn Letter-Complaint dated 23 May 2001. Respondent is the Presiding
Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner alleges that
on 17 February 2000, respondent judge solemnized her marriage to her late groom
Dominador B. Orobia without the requisite marriage license and at Nabua, Camarines
Sur which is outside his territorial jurisdiction.
They lived together as husband and wife on the strength of this marriage until her
husband passed away. However, since the marriage was a nullity, petitioners right to
inherit the vast properties left by Orobia was not recognized. She was likewise deprived
of receiving the pensions of Orobia, a retired Commodore of the Philippine Navy.
Petitioner prays that sanctions be imposed against respondent judge for his illegal
acts and unethical misrepresentations which allegedly caused her so much hardships,
embarrassment and sufferings.
On 28 May 2001, the case was referred by the Office of the Chief Justice to then
Acting Court Administrator Zenaida N. Elepao for appropriate action. On 8 June 2001,
the Office of the Court Administrator required respondent judge to comment.
In his Comment dated 5 July 2001, respondent judge averred that he was requested
by a certain Juan Arroyo on 15 February 2000 to solemnize the marriage of the parties
on 17 February 2000. Having been assured that all the documents to the marriage were
complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court
of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo informed him that
Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan
which is located almost 25 kilometers from his residence in Nabua. Arroyo then
requested if respondent judge could solemnize the marriage in Nabua, to which request
he acceded.
Respondent judge further avers that before he started the ceremony, he carefully
examined the documents submitted to him by petitioner. When he discovered that the
parties did not possess the requisite marriage license, he refused to solemnize the
marriage and suggested its resetting to another date. However, due to the earnest pleas
of the parties, the influx of visitors, and the delivery of provisions for the occasion, he
proceeded to solemnize the marriage out of human compassion. He also feared that if
he reset the wedding, it might aggravate the physical condition of Orobia who just
suffered from a stroke. After the solemnization, he reiterated the necessity for the
marriage license and admonished the parties that their failure to give it would render
the marriage void. Petitioner and Orobia assured respondent judge that they would give
the license to him in the afternoon of that same day. When they failed to comply,
respondent judge followed it up with Arroyo but the latter only gave him the same
reassurance that the marriage license would be delivered to his sala at the Municipal
Trial Court of Balatan, Camarines Sur.
Respondent judge vigorously denies that he told the contracting parties that their
marriage is valid despite the absence of a marriage license. He attributes the hardships
and embarrassment suffered by the petitioner as due to her own fault and negligence.
On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August
2001 with the Office of the Court Administrator. She attested that respondent judge
initially refused to solemnize her marriage due to the want of a duly issued marriage
license and that it was because of her prodding and reassurances that he eventually
solemnized the same. She confessed that she filed this administrative case out of rage.
However, after reading the Comment filed by respondent judge, she realized her own
shortcomings and is now bothered by her conscience.
Reviewing the records of the case, it appears that petitioner and Orobia filed their
Application for Marriage License on 5 January 2000. It was stamped in this Application
that the marriage license shall be issued on 17 January 2000. However, neither
petitioner nor Orobia claimed it.
It also appears that the Office of the Civil Registrar General issued a Certification
that it has no record of such marriage that allegedly took place on 17 February 2000.
Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued
another Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage
Contract of the parties since it has no record of their marriage.
On 8 May 2001, petitioner sought the assistance of respondent judge so the latter
could communicate with the Office of the Local Civil Registrar of Nabua, Camarines
Sur for the issuance of her marriage license. Respondent judge wrote the Local Civil
Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office,
Grace T. Escobal, informed respondent judge that their office cannot issue the marriage
license due to the failure of Orobia to submit the Death Certificate of his previous
spouse.
The Office of the Court Administrator, in its Report and Recommendation dated 15
November 2000, found the respondent judge guilty of solemnizing a marriage without
a duly issued marriage license and for doing so outside his territorial jurisdiction. A fine
of P5,000.00 was recommended to be imposed on respondent judge.
We agree.
Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the
regional trial court judges and judges of inferior courts to solemnize marriages is
confined to their territorial jurisdiction as defined by the Supreme Court.
The case at bar is not without precedent. In Navarro vs. Domagtoy,[1] respondent
judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta.
Monica-Burgos, Surigao del Norte. However, he solemnized a wedding at his residence
in the municipality of Dapa, Surigao del Norte which did not fall within the
jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that:

A priest who is commissioned and allowed by his local ordinance to marry the faithful
is authorized to do so only within the area or diocese or place allowed by his Bishop.
An appellate court Justice or a Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the venue, as long as the requisites
of the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond.
Where a judge solemnizes a marriage outside his courts jurisdiction, there is a
resultant irregularity in the formal requisite laid down in Article 3, which while
it may not affect the validity of the marriage, may subject the officiating official
to administrative liability.[2] (Emphasis supplied.)

In said case, we suspended respondent judge for six (6) months on the ground that
his act of solemnizing a marriage outside his jurisdiction constitutes gross ignorance
of the law. We further held that:

The judiciary should be composed of persons who, if not experts, are at least,
proficient in the law they are sworn to apply, more than the ordinary laymen. They
should be skilled and competent in understanding and applying the law. It is
imperative that they be conversant with basic legal principles like the ones involved in
the instant case. x x x While magistrates may at times make mistakes in judgment, for
which they are not penalized, the respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly prejudiced the status of married
persons.[3]

In the case at bar, the territorial jurisdiction of respondent judge is limited to the
municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of
petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects
him to administrative liability. His act may not amount to gross ignorance of the law
for he allegedly solemnized the marriage out of human compassion but nonetheless, he
cannot avoid liability for violating the law on marriage.
Respondent judge should also be faulted for solemnizing a marriage without the
requisite marriage license. In People vs. Lara,[4] we held that a marriage which
preceded the issuance of the marriage license is void, and that the subsequent issuance
of such license cannot render valid or even add an iota of validity to the marriage.
Except in cases provided by law, it is the marriage license that gives the solemnizing
officer the authority to solemnize a marriage. Respondent judge did not possess such
authority when he solemnized the marriage of petitioner. In this respect, respondent
judge acted in gross ignorance of the law.
Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by
petitioner. This Court has consistently held in a catena of cases that the withdrawal of
the complaint does not necessarily have the legal effect of exonerating respondent from
disciplinary action. Otherwise, the prompt and fair administration of justice, as well as
the discipline of court personnel, would be undermined. [5] Disciplinary actions of this
nature do not involve purely private or personal matters. They can not be made to
depend upon the will of every complainant who may, for one reason or another,
condone a detestable act. We cannot be bound by the unilateral act of a complainant in
a matter which involves the Courts constitutional power to discipline judges. Otherwise,
that power may be put to naught, undermine the trust character of a public office and
impair the integrity and dignity of this Court as a disciplining authority.[6]
WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the
Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a
STERN WARNING that a repetition of the same or similar offense in the future will be
dealt with more severely.
SO ORDERED.

G.R. No. L-4904 February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant,

vs.
ANGEL TAN, defendant-appellee.

Domingo Franco, for appellant.

Doroteo Karagdag, for appellee.

WILLARD, J.:

The only question in this case is whether or not the plaintiff and the defendant were married on the
25th day of September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon
in the Province of Leyte.

There was received in evidence at the trial what is called an expediente de matrimonio civil. It is
written in Spanish and consists, first, of a petition directed to the justice of the peace, dated on the
25th of September, 1907, signed by the plaintiff and the defendant, in which they state that they
have mutually agreed to enter into a contract of marriage before the justice of the peace, and ask
that the justice solemnize the marriage. Following this is a document dated on the same day, signed
by the justice of the peace, by the plaintiff, by the defendant, and by Zacarias Esmero and Pacita
Ballori. It states the presentation of the petition above mentioned; that the persons who signed it
where actually present in the office of the justice on the same day named; that they ratified under
oath the contents of the petition, and that they insisted in what they had there asked for. It also
stated that being required to produce witnesses of the marriage, the presented Zacarias Esmero as
a witness for the husband and Pacita Ballori as a witness for the wife. Following this is a certificate of
marriage signed by the justice of the peace and the witnesses Zacarias Esmero and Pacita Ballori,
dated the 25th day of September, 1907, in which it is stated that the plaintiff and the defendant were
legally married by the justice of the peace in the presence of the witnesses on that day.

The court below decided the case in favor of the defendant, holding that the parties were legally
married on the day named. The evidence in support of that decision is: First. The document itself,
which the plaintiff admits that she signed. Second. The evidence of the defendant, who testifies that
he and said plaintiff appeared before the justice of the peace at the time named, together with the
witness Zacarias Esmero and Pacita Ballori, and that they all signed the document above
mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who
testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time
named and did sign the document referred to. Fourth. The evidence of Pacita Ballori, who testified to
the same effect. Fifth. The evidence of Jose Santiago, the bailiff of the court of the justice of the
peace, who testified that the plaintiff, the defendant, the two witnesses above-named, and the justice
of the peace were all present in the office of the justice of the peace at the time mentioned.

The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before
the justice of the peace and never was married to the defendant. She admits that she signed the
document in question, but says that she signed it in her own home, without reading it, and at the
request of the defendant, who told her that it was a paper authorizing him to ask the consent of her
parents to the marriage.

There is some indirect evidence which the plaintiff claims supports her case, but which we think,
when properly considered, is not entitled to much weight. The plaintiff at the time was visiting, in the
town of Palompon, her married brother and was there for about two weeks. The wife of her brother,
Rosario Bayot, testified that the plaintiff never left the house except in her company. But she
admitted on cross-examination that she herself went to school every morning and that on one
occasion the plaintiff had gone to church unaccompanied. The testimony of this witness loses its
force when the testimony of Pacita Ballori is considered. She says that at the request of the
defendant on the day named, about 5 o'clock in the afternoon, she went to the store of a Chinese
named Veles; that there she met the plaintiff and her mother; that she asked the mother of the
plaintiff to allow the plaintiff to accompany her, the witness, to her own house for the purpose of
examining some dress patterns; that the mother gave her consent and the two rights left the store,
but instead of going to the house of the witness they went directly to the office of the justice of the
peace where the ceremony took place; that after the ceremony had taken place, one came advising
them that the mother was approaching, and that they thereupon hurriedly left the office of the justice
and went to the house of Pacita Ballori, where the mother later found them.

The other testimony of the plaintiff relating to certain statements made by the justice of the peace,
who died after the ceremony was performed and before the trial, and certain statements made by
Pacita Ballori, is not sufficient to overcome the positive testimony of the witnesses for the defendant.

The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It
appears that during her first examination she was seized with an hysterical attack and practically
collapsed at the trial. Her examination was adjourned to a future day and was completed in her
house where she was sick in bed. It is claimed by counsel that her collapse was due to the fact that
she recognized that she testified falsely in stating the office of the justice of the peace was at the
time in the municipal building, when, in fact, it was in a private house. We do not think that the record
justifies the claim of the appellant. The statement as to the location of the office of the justice of the
peace was afterwards corrected by the witness and we are satisfied that she told the facts
substantially as they occurred.

There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling
the truth when she said she did not appear before the justice of the peace. This evidence consists of
eight letters, which the defendant claims were all written by the plaintiff. The plaintiff admits that she
wrote letters numbered 2 and 9. The authenticity of the others was proven. No. 9 is as follows:

ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be
informed that we have been married civilly, I am sure that he will turn me out of the house.

Do what you may deem convenient, as I don't know what to do.

Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here.

Yours, ROSAL.
Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of
September, is as follows:

Sr. D. ANGEL, TAN.

ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in
law will not let me go there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is
the best hour.

Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait
for me at the Chinese store, because I don't like to go without Pacita.

The house must be one belonging to prudent people, and no one should know anything
about it.

Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting
the plaintiff in the afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was
evidently written after the marriage before the justice of the peace. It is as follows:

Sr. D. ANGEL, TAN.

ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at
about 9 or 10, when you see that the tide is high because my brother will have to go to the
boat for the purpose of loading lumber.

Don't tell her that we have been civilly married, but tell her at first that you are willing to
celebrate the marriage at this time, because I don't like her to know to-day that we have
been at the court-house, inasmuch as she told me this morning that she heard that we would
go to the court, and that we must not cause her to be ashamed, and that if I insist on being
married I must do it right.

Tell her also that you have asked me to carry you.

I send you herewith the letter of your brother, in order that you may do what he wishes.

Yours, ROSAL.

Letter No. 8 was also evidently written after the marriage and is in part as follows:

Sr. D. ANGEL TAN.

ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the
purpose of asking my father's permission for our marriage, and in case he fails to give it,
then we shall do what we deem proper, and, if he does not wish us to marry without his
permission, you must request his consent.

Tell me who said that my sister in law knows that we are civilly married; my brother ill
treatment is a matter of no importance, as every thing may be carried out, with patience.
It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this
letter, and that the plaintiff was on the same boat. The plaintiff testified, however, that she had no
communication with the defendant during the voyage. The plaintiff and the defendant never lived
together as husband and wife, and upon her arrival in Ormoc, after consulting with her family, she
went to Cebu and commenced this action, which was brought for the purpose of procuring the
cancellation of the certificate of marriage and for damages. The evidence strongly preponderates in
favor of the decision of the court below to the effect that the plaintiff appeared before the justice of
the peace at the time named.

It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all
that the witnesses for the defendant testified to, did not constitute a legal marriage. General orders,
No. 68, section 6, is as follows:

No particular form from the ceremony of marriage is required, but the parties must declare in
the presence of the person solemnizing the marriage, that they take each other as husband
and wife.

Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the
peace said nothing until after the document was signed and then addressing himself to the plaintiff
and the defendant said, "You are married." The petition signed the plaintiff and defendant contained
a positive statement that they had mutually agreed to be married and they asked the justice of the
peace to solemnize the marriage. The document signed by the plaintiff, the defendant, and the
justice of the peace, stated that they ratified under oath, before the justice, the contents of the
petition and that witnesses of the marriage were produced. A mortgage took place as shown by the
certificate of the justice of the peace, signed by both contracting parties, which certificates gives rise
to the presumption that the officer authorized the marriage in due form, the parties before the justice
of the peace declaring that they took each other as husband and wife, unless the contrary is proved,
such presumption being corroborated in this case by the admission of the woman to the effect that
she had contracted the marriage certified to in the document signed by her, which admission can
only mean the parties mutually agreed to unite in marriage when they appeared and signed the said
document which so states before the justice of the peace who authorized the same. It was proven
that both the plaintiff and the defendant were able to read and write the Spanish language, and that
they knew the contents of the document which they signed; and under the circumstances in this
particular case were satisfied, and so hold, that what took place before the justice of the peace on
this occasion amounted to a legal marriage.

The defendant's original answer was a general denial of the allegations contained in the complaint.
Among these allegations was a statement that the parties had obtain previously the consent of the
plaintiff's parents. The defendant was afterwards allowed to amend his answer so that it was a denial
of the allegations of the complaint except that relating to the condition in regard to the consent of the
parents. The plaintiff objected to the allowance of this amendment. After the trial had commenced
the defendant was again allowed to amend his answer so that it should be an admission of
paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It
will be seen that this second amendment destroyed completely the first amendment and the
defendants lawyer stated that what he intended to allege in his first amendment, but by reason of the
haste with which the first amendment was drawn he had unintentionally made it exactly the opposite
of what he had intended to state. After argument the court allowed the second amendment. We are
satisfied that in this allowance there was no abuse of discretion and we do not see how the plaintiff
was in any way prejudiced. She proceeded with the trial of the case without asking for a
continuance.
The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs
of this instance against the appellant.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

G.R. No. L-32473 October 6, 1930

MELECIO MADRIDEJO, assisted by his guardian ad litem, Pedro Madridejo, plaintiff-appellee,

vs.
GONZALO DE LEON, ET AL., defendants-appellants.

L. D. Abaya and S. C. Pamatmat for appellants.

Aurelio Palileo for appellee.

VILLA-REAL, J.:

This is a rehearsing of the appeal taken by the defendants, Gonzalo de Leon et al. from the
judgment of the Court of First Instance of Laguna holding as follows:

Wherefore, the court finds that Melecio Madridejo is Domingo de Leon's next of kin, and
hereby orders the defendants in case No. 5258 to restore and deliver the ownership and
possession of the property described in the complaints filed in the aforesaid case, to Melecio
Madridejo, without cost. So ordered.

In support of their appeal the defendants assign the following alleged errors as committed by the trial
court, to wit:

1. The lower court erred in holding that the marriage between Pedro Madridejo and Flaviana
Perez is valid.

2. The lower court also erred in declaring that solely because of the subsequent marriage of
his parents, the appellee Melecio Madridejo, a natural child, was legitimated.

3. The lower court lastly erred in not rendering judgment in favor of the defendants and
appellants.

The relevant facts necessary for the decision of all the questions of fact and of law raised herein are
as follows:

Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The wife
and son survived Eulogio de Leon, who died in the year 1915. During her widowhood, Flaviana
Perez lived with Pedro Madridejo, a bachelor. The registry of births of the municipality of Siniloan,
Laguna, shows that on June 1, 1917, a child was born to Pedro Madridejo and Flaviana Perez,
which was named Melecio Madridejo, the necessary data being furnished by Pedro Madridejo
(Exhibit B). On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of Flaviana Perez, no
mention being made of the father (Exhibit 2). On July 8, 1920, Flaviana Perez, being at death's door,
was married to Pedro Madridejo, a bachelor, 30 years of age, by the parish priest of Siniloan (Exhibit
A). She died on the following day, July 9, 1920, leaving Domingo de Leon, her son by Eulogio de
Leon, and the plaintiff-appellee Melecio Madridejo, as well as her alleged second husband, Pedro
Madridejo. Domingo de Leon died on the 2nd of May, 1928.

With regard to the first assignment of error, the mere fact that the parish priest of Siniloan, Laguna,
who married Pedro Madridejo and Flaviana Perez, failed to send a copy of the marriage certificate to
the municipal secretary does not invalidate the marriage in articulo mortis, it not appearing that the
essential requisites required by law for its validity were lacking in the ceremony, and the forwarding
of a copy of the marriage certificate is not one of said essential requisites.

Touching the second assignment of error, there has been no attempt to deny that Melecio
Madridejo, the plaintiff-appellee, is the natural son of the Pedro Madridejo and Flaviana Perez, The
only question to be decided is whether the subsequent marriage of his parents legitimated him.

Article 121 of the Civil Code provides:

Art. 121. Children shall be considered as legitimated by a subsequent marriage only when
they have been acknowledged by the parents before or after the celebration thereof.

According to this legal provision, in order that a subsequent marriage may be effective as a
legitimation, the natural children born out of wedlock must have been acknowledged by the parents
either before or after its celebration. The Civil Code has established two kinds of acknowledgment:
voluntary and compulsary. Article 131 provides for the voluntary acknowledgment by the father or
mother as follows:

Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will,
or in some other public document.

Article 135 provides for the compulsary acknowledgment by the father, thus:

Art. 135. The father may be compelled to acknowledge his natural child in the following
cases:

1. When an indisputable paper written by him, expressly acknowledging his paternity, is in

existence.

2. When the child has been in the uninterrupted possession of the status of a natural child of
the defendant father, justified by the conduct of the father himself of that of his family.

3. In cases of rape, seduction, or abduction, the provisions of the Penal Code with regard to
the acknowledgment of the issue, shall be observed.

Article 136 providing for the compulsory acknowledgment by the mother, reads:

Art. 136. The mother may be compelled to acknowlegde her natural child:

1. When the child is, with respect to the mother, included in any of the cases mentioned in
the next preceding article.

2. When the fact of the birth and the identity of the child are fully proven.
Let us see whether the plaintiff-appellee, Melecio Madridejo, has been acknowledged by his parents
Pedro Madridejo and Flaviana Perez, under any of the provisions above quoted.

To begin with the father, no document has been adduced to show that he has voluntarily
acknowledged Melecio Madridejo as his son, except the registry certificate of birth, Exhibit B. This, of
course, is not the record of birth mentioned in the law, for it lacks the requisites of article 48 of the
Law of Civil Registry. It, no doubt, is a public instrument, but it has neither been executed nor signed
by Pedro Madridejo, and contains no statement by which he acknowledges Melecio Madridejo to be
his son. Although as Pedro Madridejo testified, he furnished the municipal secretary of Siniloan with
necessary data for recording the birth of Melecio Madridejo, and although said official inscribed the
data thus given in the civil registry of births, this is not sufficient to bring it under the legal provision
regarding acknowledgment by a public document.

As to the mother, it does not appear that Flaviana Perez supplied the data set forth in the civil
registry of births, Exhibit B, or in the baptismal register, where of Exhibit 2 is a certificate, and which
constitutes final proof only of the baptism, and not of the kinship or parentage of the person baptized
(Adriano vs. De Jesus, 23 Phil., 350). Furthermore, church registers of baptism are no longer
considered public documents (United States vs. Evangelista, 29 Phil., 215).

Melecio Madridejo, then, was not voluntarily acknowledged by Pedro Madridejo or Flaviana Perez,
either before or after their marriage. 1awph! l.net

Did Pedro Madridejo acknowledge Melecio Madridejo as his son, by compulsion?

The compulsory acknowledgment by the father established in article 135 of the Civil Code, and by
the mother according to article 136, requires that the natural child take judicial action against the
father or mother, or against the persons setting themselves up as the heirs of both, for the purpose
of compelling them to acknowledge him as a natural son through a judgment of the court.

In the instant action brought by Melecio Madridejo not only has he not demanded to be
acknowledged as a natural child, which is the condition precedent to establishing his legitimation by
the subsequent marriage and his right to the estate of his uterine brother, Domingo de Leon, but he
has not even impleaded either his father Pedro Madridejo, or the heirs of his mother, Flaviana Perez,
in order that the court might have authority to make a valid and effective pronouncement of his being
a natural child, and to compel them to acknowledge him as such.

The plaintiff-appellee alleges that the second paragraph of the defendants' answer amounts to an
admission that he is indeed Flaviana Perez's son, and relieves him of the burden of proving that his
mother acknowledged him as a son before her marriage. Such an admission would have been
affective if the present action had been brought for the purpose of compelling Flaviana Perez or her
heirs to acknowledge the appellee as her son.

In view of the foregoing, it is evident that Melecio Madridejo has not been acknowledged by Pedro
Madridejo and Flaviana Perez, either voluntarily or by compulsion, before or after their marriage, and
therefore said marriage did not legitimate him.

Wherefore, the judgment is reversed, the complaint dismissed, and the defendants absolved with
costs against the appellee without prejudice to any right he may have to establish or compel his
acknowledgment as the natural son of Pedro Madridejo and Flaviana Perez. So ordered.

Avanceña, C.J., Street, Malcolm, Villamor, Ostrand and Romualdez, JJ., concur.
G.R. No. 173540 January 22, 2014

PEREGRINA MACUA VDA. DE AVENIDO, Petitioner,

vs.
TECLA HOYBIA AVENIDO, Respondent.

DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari under Rule 45.ofthe Rules of Court, assailing the 31
August 2005 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 79444, which reversed the
25 March 2003 Decision2 of the Regional Trial Court (RTC), Branch 8 of Davao City, in a complaint
for Declaration of Absolute Nullity of Marriage· docketed as Civil Case No. 26, 908-98.

The Facts

This case involves a contest between two women both claiming to have been validly married to the
same man, now deceased.

Respondent Tecla Hoybia Avenido (Tecla) instituted on 11 November 1998, a Complaint for
Declaration of Nullity of Marriage against Peregrina Macua Vda. de Avenido (Peregrina) on the
ground that she (Tecla), is the lawful wife of the deceased Eustaquio Avenido (Eustaquio). In her
complaint, Tecla alleged that her marriage to Eustaquio was solemnized on 30 September 1942 in
Talibon, Bohol in rites officiated by the Parish Priest of the said town. According to her, the fact of
their marriage is evidenced by a Marriage Certificate recorded with the Office of the Local Civil
Registrar (LCR) of Talibon, Bohol. However, due to World War II, records were destroyed. Thus,
only a Certification3 was issued by the LCR.

During the existence of Tecla and Eustaquio’s union, they begot four (4) children, namely: Climaco
H. Avenido, born on 30 March 1943; Apolinario H. Avenido, born on 23 August 1948; Editha A.
Ausa, born on 26 July 1950, and Eustaquio H. Avenido, Jr., born on 15 December 1952. Sometime
in 1954, Eustaquio left his family and his whereabouts was not known. In 1958, Tecla and her
children were informed that Eustaquio was in Davao City living with another woman by the name of
Buenaventura Sayson who later died in 1977 without any issue.

In 1979, Tecla learned that her husband Eustaquio got married to another woman by the name of
Peregrina, which marriage she claims must be declared null and void for being bigamous – an action
she sought to protect the rights of her children over the properties acquired by Eustaquio.

On 12 April 1999, Peregrina filed her answer to the complaint with counterclaim,4 essentially averring
that she is the legal surviving spouse of Eustaquio who died on 22 September 1989 in Davao City,
their marriage having been celebrated on 30 March 1979 at St. Jude Parish in Davao City. She also
contended that the case was instituted to deprive her of the properties she owns in her own right and
as an heir of Eustaquio.

Trial ensued.

Tecla presented testimonial and documentary evidence consisting of:

 1) Testimonies of Adelina Avenido-Ceno (Adelina), Climaco Avenido (Climaco) and Tecla
herself to substantiate her alleged prior existing and valid marriage with (sic) Eustaquio;

2) Documentary evidence such as the following:

a. Certification of Loss/Destruction of Record of Marriage from 1900 to 1944 issued

by the Office of the Civil Registrar, Municipality of Talibon, Bohol;5

b. Certification of Submission of a copy of Certificate of Marriage to the Office of the

Civil Registrar General, National Statistics Office (NSO), R. Magsaysay Blvd., Sta
Mesa, Manila;6

c. Certification that Civil Registry records of births, deaths and marriages that were
actually filed in the Office of the Civil Registrar General, NSO Manila, started only in
1932;7

d. Certification that Civil Registry records submitted to the Office of the Civil Registrar
General, NSO, from 1932 to the early part of 1945, were totally destroyed during the
liberation of Manila;8

e. Certification of Birth of Apolinario Avenido;9

f. Certification of Birth of Eustaquio Avenido, Jr.;10

g. Certification of Birth of Editha Avenido;11

h. Certification of Marriage between Eustaquio Sr., and Tecla issued by the Parish
Priest of Talibon, Bohol on 30 September 1942;12

i. Certification that record of birth from 1900 to 1944 were destroyed by Second
World War issued by the Office of the Municipal Registrar of Talibon, Bohol, that they
cannot furnish as requested a true transcription from the Register of Birth of Climaco
Avenido;13

j. Certificate of Baptism of Climaco indicating that he was born on 30 March 1943 to

spouses Eustaquio and Tecla;14

k. Electronic copy of the Marriage Contract between Eustaquio and Peregrina.15

On the other hand, Peregrina testified on, among others, her marriage to Eustaquio that took place
in Davao City on 3 March 1979; her life as a wife and how she took care of Eustaquio when he
already had poor health, as well as her knowledge that Tecla is not the legal wife, but was once a
common law wife of Eustaquio.16 Peregrina likewise set forth documentary evidence to substantiate
her allegations and to prove her claim for damages, to wit:

1) Marriage Contract17 between Pregrina and the late Eustaquio showing the date of
marriage on 3 March 1979;

2) Affidavit of Eustaquio executed on 22 March 1985 declaring himself as single when he

contracted marriage with the petitioner although he had a common law relation with one
 Tecla Hoybia with whom he had four (4) children namely: Climaco, Tiburcio, Editha and
Eustaquio, Jr., all surnamed Avenido;18

3) Letter of Atty. Edgardo T. Mata dated 15 April 2002, addressed to the Civil Registrar of the
Municipality of Alegria, Surigao del Norte;19 and

4) Certification dated 25 April 2002 issued by Colita P. Umipig, in her capacity as the Civil
Registrar of Alegria, Surigao del Norte.20

In addition, as basis for the counterclaim, Peregrina averred that the case was initiated in bad faith
so as to deprive her of the properties she owns in her own right and as an heir of Eustaquio; hence,
her entitlement to damages and attorney’s fees.

On 25 March 2003, the RTC rendered a Decision21 denying Tecla’s petition, as well as Peregrina’s
counter-claim. The dispositive portion thereof reads:

For The Foregoing, the petition for the "DECLARATION OF NULLITY OF MARRIAGE" filed by
petitioner TECLA HOYBIA AVENIDO against respondent PEREGRINA MACUA is hereby DENIED.

The "COUNTERCLAIM" filed by respondent PEREGRINA MACUA against petitioner TECLA

HOYBIA AVENIDO is hereby DISMISSED.22

Not convinced, Tecla appealed to the CA raising as error the trial court’s alleged disregard of the
evidence on the existence of her marriage to Eustaquio.

In its 31 August 2005 Decision,23 the CA ruled in favor of Tecla by declaring the validity of her
marriage to Eustaquio, while pronouncing on the other hand, the marriage between Peregrina and
Eustaquio to be bigamous, and thus, null and void. The CA ruled:

The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the
sister of EUSTAQUIO who testified that she personally witnessed the wedding celebration of her
older brother EUSTAQUIO and [Tecla] on 30 September 1942 at Talibon, Bohol; [Climaco], the
eldest son of EUSTAQUIO and [Tecla], who testified that his mother [Tecla] was married to his
father, EUSTAQUIO, and [Tecla] herself; and (2) the documentary evidence mentioned at the outset.
It should be stressed that the due execution and the loss of the marriage contract, both constituting
the condition sine qua non, for the introduction of secondary evidence of its contents, were shown by
the very evidence the trial court has disregarded.24

Peregrina now questions the said ruling assigning as error, among others, the failure of the CA to
appreciate the validity of her marriage to Eustaquio. For its part, the Office of the Solicitor General
(OSG), in its Memorandum25dated 5 June 2008, raises the following legal issues:

1. Whether or not the court can validly rely on the "presumption of marriage" to overturn the
validity of a subsequent marriage;

2. Whether or not secondary evidence may be considered and/or taken cognizance of,
without proof of the execution or existence and the cause of the unavailability of the best
evidence, the original document;

and
 3. Whether or not a Certificate of Marriage issued by the church has a probative value to
prove the existence of a valid marriage without the priest who issued the same being
presented to the witness stand.26

Our Ruling

Essentially, the question before us is whether or not the evidence presented during the trial proves
the existence of the marriage of Tecla to Eustaquio.

The trial court, in ruling against Tecla’s claim of her prior valid marriage to Eustaquio relied on
Tecla’s failure to present her certificate of marriage to Eustaquio. Without such certificate, the trial
court considered as useless the certification of the Office of the Civil Registrar of Talibon, Bohol, that
it has no more records of marriages during the period 1900 to 1944. The same thing was said as
regards the Certification issued by the National Statistics Office of Manila. The trial court observed:

Upon verification from the NSO, Office of the Civil Registrar General, Manila, it, likewise, issued a
Certification (Exhibit "B") stating that:

records from 1932 up to early part of 1945 were totally destroyed during the liberation of Manila on
February 4, 1945. What are presently filed in this office are records from the latter part of 1945 to
date, except for the city of Manila which starts from 1952. Hence, this office has no way of verifying
and could not issue as requested, certified true copy of the records of marriage between [Eustaquio]
and [Tecla], alleged to have been married on 30th September 1942, in Talibon, Bohol.27

In the absence of the marriage contract, the trial court did not give credence to the testimony of
Tecla and her witnesses as it considered the same as mere self-serving assertions. Superior
significance was given to the fact that Tecla could not even produce her own copy of the said proof
of marriage. Relying on Section 3 (a) and Section 5, Rule 130 of the Rules of Court, the trial court
declared that Tecla failed to prove the existence of the first marriage.

The CA, on the other hand, concluded that there was a presumption of lawful marriage between
Tecla and Eustaquio as they deported themselves as husband and wife and begot four (4) children.
Such presumption, supported by documentary evidence consisting of the same Certifications
disregarded by the trial court, as well as the testimonial evidence especially that of Adelina Avenido-
Ceno, created, according to the CA, sufficient proof of the fact of marriage. Contrary to the trial
court’s ruling, the CA found that its appreciation of the evidence presented by Tecla is well in accord
with Section 5, Rule 130 of the Rules of Court.

We uphold the reversal by the CA of the decision of the trial court. Quite recently, in Añonuevo v.
Intestate Estate of Rodolfo G. Jalandoni,28 we said, citing precedents, that:

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded
as the sole and exclusive evidence of marriage. Jurisprudence teaches that the fact of marriage may
be proven by relevant evidence other than the marriage certificate. Hence, even a person’s birth
certificate may be recognized as competent evidence of the marriage between his parents.

The error of the trial court in ruling that without the marriage certificate, no other proof of the fact can
be accepted, has been aptly delineated in Vda de Jacob v. Court of Appeals.29 Thus:

It should be stressed that the due execution and the loss of the marriage contract, both constituting
the conditio sine qua non for the introduction of secondary evidence of its contents, were shown by
the very evidence they have disregarded. They have thus confused the evidence to show due
execution and loss as "secondary" evidence of the marriage. In Hernaez v. Mcgrath, the Court
clarified this misconception thus:

x x x [T]he court below was entirely mistaken in holding that parol evidence of the execution of the
instrument was barred. The court confounded the execution and the contents of the document. It is
the contents, x x x which may not be proven by secondary evidence when the

instrument itself is accessible. Proofs of the execution are not dependent on the existence or non-
existence of the document, and, as a matter of fact, such proofs of the contents: due execution,
besides the loss, has to be shown as foundation for the inroduction of secondary evidence of the
contents.

xxxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral or primary. It
generally consists of parol testimony or extrinsic papers. Even when the document is actually
produced, its authencity is not necessarily, if at all, determined from its face or recital of its contents
but by parol evidence. At the most, failure to produce the document, when available, to establish its
execution may effect the weight of the evidence presented but not the admissibility of such evidence.

The Court of Appeals, as well as the trial court, tried to justify its stand on this issue by relying on
Lim Tanhu v. Ramolete. But even there, we said that "marriage may be prove[n] by other competent
evidence.

Truly, the execution of a document may be proven by the parties themselves, by the swearing
officer, by witnesses who saw and recognized the signatures of the parties; or even by those to
whom the parties have previously narrated the execution thereof. The Court has also held that "[t]he
loss may be shown by any person who [knows] the fact of its loss, or by any one who ha[s] made, in
the judgment of the court, a sufficient examination in the place or places where the document or
papers of similar character are usually kept by the person in whose custody the document lost was,
and has been unable to find it; or who has made any other investigation which is sufficient to satisfy
the court that the instrument [has] indeed [been] lost."

In the present case, due execution was established by the testimonies of Adela Pilapil, who was
present during the marriage ceremony, and of petitioner herself as a party to the event. The
subsequent loss was shown by the testimony and the affidavit of the officiating priest, Monsignor
Yllana, as relevant, competent and admissible evidence. Since the due execution and the loss of the
marriage contract were clearly shown by the evidence presented, secondary evidence–testimonial
and documentary–may be admitted to prove the fact of marriage.30

As correctly stated by the appellate court:

In the case at bench, the celebration of marriage between [Tecla] and EUSTAQUIO was established
by the testimonial evidence furnished by [Adelina] who appears to be present during the marriage
ceremony, and by [Tecla] herself as a living witness to the event. The loss was shown by the
certifications issued by the NSO and LCR of Talibon, Bohol. These are relevant, competent and
admissible evidence. Since the due execution and the loss of the marriage contract were clearly
shown by the evidence presented, secondary evidence – testimonial and documentary – may be
admitted to prove the fact of marriage. In PUGEDA v. TRIAS, the
Supreme Court held that "marriage may be proven by any competent and relevant evidence. The
testimony by one of the parties to the marriage or by one of the witnesses to the marriage has been
held to be admissible to prove the fact of marriage. The person who officiated at the solemnization is
also competent to testify as an eyewitness to the fact of marriage."

xxxx

The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the
sister of EUSTAQUIO who testified that she personally witnessed the wedding celebration of her
older brother EUSTAQUIO and [Tecla] on 30 September 1942 at Talibon, Bohol; [Climaco], the
eldest son of EUSTAQUIO and [Tecla], who testified that his mother [Tecla] was married to his
father, EUSTAQUIO, and [Tecla] herself; and (2) the documentary evidence mentioned at the outset.
It should be stressed that the due execution and the loss of the marriage contract, both constituting
the condition sine qua non for the introduction of secondary evidence of its contents, were shown by
the very evidence the trial court has disregarded.31

The starting point then, is the presumption of marriage.

As early as the case of Adong v. Cheong Seng Gee,32 this Court has elucidated on the rationale
behind the presumption:

The basis of human society throughout the civilized world is that of marriage. Marriage in this
1âwphi1

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 be living in the constant violation of decency and of law. A
presumption established by our Code of Civil Procedure is that a man and a 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.

In the case at bar, the establishment of the fact of marriage was completed by the testimonies of
Adelina, Climaco and Tecla; the unrebutted the certifications of marriage issued by the parish priest
of the Most Holy Trinity Cathedral of Talibon, Bohol.

WHEREFORE, the Petition is DENIED and the assailed Decision of the Court of Appeals in CA-G.R.
CV No. 79444 is AFFIRMED. The marriage between petitioner Peregrina Macua Avenido and the
deceased Eustaquio Avenido is hereby declared NULL and VOID. No pronouncement as to costs.

SO ORDERED.

G.R. No. 183896 January 30, 2013

SYED AZHAR ABBAS, Petitioner,

vs.
GLORIA GOO ABBAS, Respondent.

DECISION

VELASCO, JR., J.:

This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
questioning the Decision1 of the Court of Appeals (CA) dated March 11, 2008 in CA-G.R. CV No.
86760, which reversed the Decision2 in Civil Case No. 03-0382-CFM dated October 5, 2005 of the
Regional Trial Court (RTC), Branch 109, Pasay City, and the CA Resolution dated July 24, 2008,
denying petitioner's Motion for Reconsideration of the CA Decision.

The present case stems from a petition filed by petitioner Syed Azhar Abbas (Syed) for the
declaration of nullity of his marriage to Gloria Goo-Abbas (Gloria) with the RTC of Pasay City,
docketed as Civil Case No. 03-0382-CFM, and raffled to RTC Branch 109. Syed alleged the
absence of a marriage license, as provided for in Article 4, Chapter I, Title 1 of Executive Order No.
269, otherwise known as the Family Code of the Philippines, as a ground for the annulment of his
marriage to Gloria.

In the Marriage Contract3 of Gloria and Syed, it is stated that Marriage License No. 9969967, issued
at Carmona, Cavite on January 8, 1993, was presented to the solemnizing officer. It is this
information that is crucial to the resolution of this case.

At the trial court, Syed, a Pakistani citizen, testified that he met Gloria, a Filipino citizen, in Taiwan in
1991, and they were married on August 9, 1992 at the Taipei Mosque in Taiwan.4 He arrived in the
Philippines in December of 1992. On January 9, 1993, at around 5 o’clock in the afternoon, he was
at his mother-in-law’s residence, located at 2676 F. Muñoz St., Malate, Manila, when his mother-in-
law arrived with two men. He testified that he was told that he was going to undergo some
ceremony, one of the requirements for his stay in the Philippines, but was not told of the nature of
said ceremony. During the ceremony he and Gloria signed a document. He claimed that he did not
know that the ceremony was a marriage until Gloria told him later. He further testified that he did not
go to Carmona, Cavite to apply for a marriage license, and that he had never resided in that area. In
July of 2003, he went to the Office of the Civil Registrar of Carmona, Cavite, to check on their
marriage license, and was asked to show a copy of their marriage contract wherein the marriage
license number could be found.5 The Municipal Civil Registrar, Leodivinia C. Encarnacion, issued a
certification on July 11, 2003 to the effect that the marriage license number appearing in the
marriage contract he submitted, Marriage License No. 9969967, was the number of another
marriage license issued to a certain Arlindo Getalado and Myra Mabilangan.6 Said certification reads
as follows:

11 July 2003

TO WHOM IT MAY CONCERN:

This is to certify as per Registry Records of Marriage License filed in this office, Marriage License
No. 9969967 was issued in favor of MR. ARLINDO GETALADO and MISS MYRA MABILANGAN on
January 19, 1993.

No Marriage License appear [sic] to have been issued to MR. SYED AZHAR ABBAS and MISS
GLORIA F. GOO on January 8, 1993.

This certification is being issued to Mr. Syed Azhar Abbas for whatever legal purpose or intents it
may serve.7

On cross-examination, Syed testified that Gloria had filed bigamy cases against him in 2001 and
2002, and that he had gone to the Municipal Civil Registrar of Carmona, Cavite to get certification on
whether or not there was a marriage license on advice of his counsel.8
Petitioner also presented Norberto Bagsic (Bagsic), an employee of the Municipal Civil Registrar of
Carmona, Cavite. Bagsic appeared under a letter of authority from the Municipal Civil Registrar of
Carmona, Cavite, and brought documents pertaining to Marriage License No. 9969967, which was
issued to Arlindo Getalado and Myra Mabilangan on January 20, 1993.9

Bagsic testified that their office issues serial numbers for marriage licenses and that the numbers are
issued chronologically.10 He testified that the certification dated July 11, 2003, was issued and
signed by Leodivina Encarnacion, Registrar of the Municipality of Carmona, Cavite, certifying that
Marriage License No. 9969967 was issued for Arlindo Getalado and Myra Mabilangan on January
19, 1993, and that their office had not issued any other license of the same serial number, namely
9969967, to any other person.11

For her part, Gloria testified on her own behalf, and presented Reverend Mario Dauz, Atty. Lorenzo
Sanchez, Felicitas Goo and May Ann Ceriola.

Reverend Mario Dauz (Rev. Dauz) testified that he was a minister of the Gospel and a barangay
captain, and that he is authorized to solemnize marriages within the Philippines.12 He testified that he
solemnized the marriage of Syed Azhar Abbas and Gloria Goo at the residence of the bride on
January 9, 1993.13 He stated that the witnesses were Atty. Lorenzo Sanchez (Atty. Sanchez) and
Mary Ann Ceriola.14 He testified that he had been solemnizing marriages since 1982, and that he is
familiar with the requirements.15 Rev. Dauz further testified that Atty. Sanchez gave him the marriage
license the day before the actual wedding, and that the marriage contract was prepared by his
secretary.16 After the solemnization of the marriage, it was registered with the Local Civil Registrar of
Manila, and Rev. Dauz submitted the marriage contract and copy of the marriage license with that
office.17

Atty. Sanchez testified that he was asked to be the sponsor of the wedding of Syed Abbas and
Gloria Goo by the mother of the bride, Felicitas Goo.18 He testified that he requested a certain Qualin
to secure the marriage license for the couple, and that this Qualin secured the license and gave the
same to him on January 8, 1993.19 He further testified that he did not know where the marriage
license was obtained.20 He attended the wedding ceremony on January 9, 1993, signed the marriage
contract as sponsor, and witnessed the signing of the marriage contract by the couple, the
solemnizing officer and the other witness, Mary Ann Ceriola.21

Felicitas Goo testified that Gloria Goo is her daughter and Syed Azhar Abbas is her son-in-law, and
that she was present at the wedding ceremony held on January 9, 1993 at her house.22 She testified
that she sought the help of Atty. Sanchez at the Manila City Hall in securing the marriage license,
and that a week before the marriage was to take place, a male person went to their house with the
application for marriage license.23 Three days later, the same person went back to their house,
showed her the marriage license before returning it to Atty. Sanchez who then gave it to Rev. Dauz,
the solemnizing officer.24 She further testified that she did not read all of the contents of the marriage
license, and that she was told that the marriage license was obtained from Carmona.25 She also
testified that a bigamy case had been filed by Gloria against Syed at the Regional Trial Court of
Manila, evidenced by an information for Bigamy dated January 10, 2003, pending before Branch 47
of the Regional Trial Court of Manila.26

As to Mary Ann Ceriola’s testimony, the counsels for both parties stipulated that: (a) she is one of
the sponsors at the wedding of Gloria Goo and Syed Abbas on January 9, 1993; (b) she was seen in
the wedding photos and she could identify all the persons depicted in said photos; and (c) her
testimony corroborates that of Felicitas Goo and Atty. Sanchez.
The respondent, Gloria, testified that Syed is her husband, and presented the marriage contract
bearing their signatures as proof.27 She and her mother sought the help of Atty. Sanchez in securing
a marriage license, and asked him to be one of the sponsors. A certain Qualin went to their house
and said that he will get the marriage license for them, and after several days returned with an
application for marriage license for them to sign, which she and Syed did. After Qualin returned with
the marriage license, they gave the license to Atty. Sanchez who gave it to Rev. Dauz, the
solemnizing officer. Gloria testified that she and Syed were married on January 9, 1993 at their
residence.28

Gloria further testified that she has a daughter with Syed, born on June 15, 1993.29

Gloria also testified that she filed a bigamy case against Syed, who had married a certain Maria
Corazon Buenaventura during the existence of the previous marriage, and that the case was
docketed as Criminal Case No. 02A-03408, with the RTC of Manila.30

Gloria stated that she and Syed had already been married on August 9, 1992 in Taiwan, but that she
did not know if said marriage had been celebrated under Muslim rites, because the one who
celebrated their marriage was Chinese, and those around them at the time were Chinese.31

The Ruling of the RTC

In its October 5, 2005 Decision, the Pasay City RTC held that no valid marriage license was issued
by the Municipal Civil Registrar of Carmona, Cavite in favor of Gloria and Syed, as Marriage License
No. 9969967 had been issued to Arlindo Getalado and Myra Mabilangan, and the Municipal Civil
Registrar of Carmona, Cavite had certified that no marriage license had been issued for Gloria and
Syed.32 It also took into account the fact that neither party was a resident of Carmona, Cavite, the
place where Marriage License No. 9969967 was issued, in violation of Article 9 of the Family
Code.33 As the marriage was not one of those exempt from the license requirement, and that the lack
of a valid marriage license is an absence of a formal requisite, the marriage of Gloria and Syed on
January 9, 1993 was void ab initio.

The dispositive portion of the Decision reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the petitioner, and against the respondent
declaring as follows:

1. The marriage on January 9, 1993 between petitioner Syed Azhar Abbas and respondent
Gloria Goo-Abbas is hereby annulled;

2. Terminating the community of property relations between the petitioner and the
respondent even if no property was acquired during their cohabitation by reason of the nullity
of the marriage of the parties.

3. The Local Civil Registrar of Manila and the Civil Registrar General, National Statistics
Office, are hereby ordered to cancel from their respective civil registries the marriage
contracted by petitioner Syed Azhar Abbas and respondent Gloria Goo-Abbas on January 9,
1993 in Manila.

SO ORDERED.34
Gloria filed a Motion for Reconsideration dated November 7, 2005, but the RTC denied the same,
prompting her to appeal the questioned decision to the Court of Appeals.

The Ruling of the CA

In her appeal to the CA, Gloria submitted the following assignment of errors:

THE LOWER COURT ERRED IN DECLARING THE MARRIAGE BETWEEN THE

PETITIONER AND RESPONDENT AS NULL AND VOID DUE TO THE ABSENCE OF A
MARRIAGE LICENSE DESPITE EVIDENCE CLEARLY SHOWING THAT THERE WAS
ONE.

II

THE LOWER COURT ERRED IN NOT CONSIDERING, AS A REQUISITE OF A VALID

MARRIAGE, THE OVERWHELMING EVIDENCE SHOWING THAT A MARRIAGE
CEREMONY TOOK PLACE WITH THE APPEARANCE OF THE CONTRACTING PARTIES
BEFORE THE SOLEMNIZING OFFICER AND THEIR PERSONAL DECLARATION THAT
THEY TOOK EACH OTHER AS HUSBAND AND WIFE IN THE PRESENCE OF NOT LESS
THAN TWO WITNESSES OF LEGAL AGE.

III

THE LOWER COURT ERRED IN NOT RULING ON THE ISSUE OF ESTOPPEL BY

LACHES ON THE PART OF THE PETITIONER, AN ISSUE TIMELY RAISED IN THE
COURT BELOW.35

The CA gave credence to Gloria’s arguments, and granted her appeal. It held that the certification of
the Municipal Civil Registrar failed to categorically state that a diligent search for the marriage
license of Gloria and Syed was conducted, and thus held that said certification could not be
accorded probative value.36 The CA ruled that there was sufficient testimonial and documentary
evidence that Gloria and Syed had been validly married and that there was compliance with all the
requisites laid down by law.37

It gave weight to the fact that Syed had admitted to having signed the marriage contract. The CA
also considered that the parties had comported themselves as husband and wife, and that Syed only
instituted his petition after Gloria had filed a case against him for bigamy.38

The dispositive portion of the CA Decision reads as follows:

WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated 05 October
2005 and Order dated 27 January 2006 of the Regional Trial Court of Pasay City, Branch 109, in
Civil Case No. 03-0382-CFM are REVERSED and SET ASIDE and the Petition for Declaration of
Nullity of Marriage is DISMISSED. The marriage between Shed [sic] Azhar Abbas and Gloria Goo
Abbas contracted on 09 January 1993 remains valid and subsisting. No costs.

SO ORDERED.39
Syed then filed a Motion for Reconsideration dated April 1, 200840 but the same was denied by the
CA in a Resolution dated July 24, 2008.41

Hence, this petition.

Grounds in Support of Petition

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN

CITING REPUBLIC VS. COURT OF APPEALS AS THE SAME IS DIAMETRICALLY
INCONSISTENT AND CONTRARY TO THE COURT’S OWN FINDINGS AND
CONCLUSIONS IN THIS CASE.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REVERSING AND

SETTING ASIDE, WITHOUT ANY FACTUAL AND LEGAL BASIS, THE DECISION OF THE
REGIONAL TRIAL COURT GRANTING THE PETITION FOR DECLARATION OF NULLITY
OF MARRIAGE.42

The Ruling of this Court

The petition is meritorious.

As the marriage of Gloria and Syed was solemnized on January 9, 1993, Executive Order No. 209,
or the Family Code of the Philippines, is the applicable law. The pertinent provisions that would
apply to this particular case are Articles 3, 4 and 35(3), which read as follows:

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses of legal age.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab
initio, except as stated in Article 35(2).

A defect in any of the essential requisites shall render the marriage voidable as provided in Article
45.

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly, criminally and administratively liable.

Art. 35. The following marriages shall be void from the beginning:
 xxxx

(3) Those solemnized without a license, except those covered by the preceding Chapter.

There is no issue with the essential requisites under Art. 2 of the Family Code, nor with the formal
requisites of the authority of the solemnizing officer and the conduct of the marriage ceremony. Nor
is the marriage one that is exempt from the requirement of a valid marriage license under Chapter 2,
Title I of the Family Code. The resolution of this case, thus, hinges on whether or not a valid
marriage license had been issued for the couple. The RTC held that no valid marriage license had
been issued. The CA held that there was a valid marriage license.

We find the RTC to be correct in this instance.

Respondent Gloria failed to present the actual marriage license, or a copy thereof, and relied on the
marriage contract as well as the testimonies of her witnesses to prove the existence of said license.
To prove that no such license was issued, Syed turned to the office of the Municipal Civil Registrar
of Carmona, Cavite which had allegedly issued said license. It was there that he requested
certification that no such license was issued. In the case of Republic v. Court of Appeals43 such
certification was allowed, as permitted by Sec. 29, Rule 132 of the Rules of Court, which reads:

SEC. 28. Proof of lack of record. – A written statement signed by an officer having the custody of an
official record or by his deputy that after diligent search, no record or entry of a specified tenor is
found to exist in the records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such record or entry.

In the case of Republic, in allowing the certification of the Civil Registrar of Pasig to prove the non-
issuance of a marriage license, the Court held:

The above Rule authorized the custodian of the documents to certify that despite diligent search, a
particular document does not exist in his office or that a particular entry of a specified tenor was not
to be found in a register. As custodians of public documents, civil registrars are public officers
charged with the duty, inter alia, of maintaining a register book where they are required to enter all
applications for marriage licenses, including the names of the applicants, the date the marriage
license was issued and such other relevant data.44

The Court held in that case that the certification issued by the civil registrar enjoyed probative value,
as his duty was to maintain records of data relative to the issuance of a marriage license.

The Municipal Civil Registrar of Carmona, Cavite, where the marriage license of Gloria and Syed
was allegedly issued, issued a certification to the effect that no such marriage license for Gloria and
Syed was issued, and that the serial number of the marriage license pertained to another couple,
Arlindo Getalado and Myra Mabilangan. A certified machine copy of Marriage License No. 9969967
was presented, which was issued in Carmona, Cavite, and indeed, the names of Gloria and Syed do
not appear in the document.

In reversing the RTC, the CA focused on the wording of the certification, stating that it did not comply
with Section 28, Rule 132 of the Rules of Court.

The CA deduced that from the absence of the words "despite diligent search" in the certification, and
since the certification used stated that no marriage license appears to have been issued, no diligent
search had been conducted and thus the certification could not be given probative value.
To justify that deduction, the CA cited the case of Republic v. Court of Appeals.45 It is worth noting
that in that particular case, the Court, in sustaining the finding of the lower court that a marriage
license was lacking, relied on the Certification issued by the Civil Registrar of Pasig, which merely
stated that the alleged marriage license could not be located as the same did not appear in their
records. Nowhere in the Certification was it categorically stated that the officer involved conducted a
diligent search, nor is a categorical declaration absolutely necessary for Sec. 28, Rule 132 of the
Rules of Court to apply.

Under Sec. 3(m), Rule 131 of the Rules of Court, it is a disputable presumption that an official duty
has been regularly performed, absent contradiction or other evidence to the contrary. We held, "The
presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or
failure to perform a duty."46 No such affirmative evidence was shown that the Municipal Civil
Registrar was lax in performing her duty of checking the records of their office, thus the presumption
must stand. In fact, proof does exist of a diligent search having been conducted, as Marriage
License No. 996967 was indeed located and submitted to the court. The fact that the names in said
license do not correspond to those of Gloria and Syed does not overturn the presumption that the
registrar conducted a diligent search of the records of her office.

It is telling that Gloria failed to present their marriage license or a copy thereof to the court. She
failed to explain why the marriage license was secured in Carmona, Cavite, a location where,
admittedly, neither party resided. She took no pains to apply for the license, so she is not the best
witness to testify to the validity and existence of said license. Neither could the other witnesses she
presented prove the existence of the marriage license, as none of them applied for the license in
Carmona, Cavite. Her mother, Felicitas Goo, could not even testify as to the contents of the license,
having admitted to not reading all of its contents. Atty. Sanchez, one of the sponsors, whom Gloria
and Felicitas Goo approached for assistance in securing the license, admitted not knowing where
the license came from. The task of applying for the license was delegated to a certain Qualin, who
could have testified as to how the license was secured and thus impeached the certification of the
Municipal Civil Registrar as well as the testimony of her representative. As Gloria failed to present
this Qualin, the certification of the Municipal Civil Registrar still enjoys probative value.

It is also noted that the solemnizing officer testified that the marriage contract and a copy of the
marriage license were submitted to the Local Civil Registrar of Manila. Thus, a copy of the marriage
license could have simply been secured from that office and submitted to the court. However, Gloria
inexplicably failed to do so, further weakening her claim that there was a valid marriage license
issued for her and Syed.

In the case of Cariño v. Cariño,47 following the case of Republic,48 it was held that the certification of
the Local Civil Registrar that their office had no record of a marriage license was adequate to prove
the non-issuance of said license. The case of Cariño further held that the presumed validity of the
marriage of the parties had been overcome, and that it became the burden of the party alleging a
valid marriage to prove that the marriage was valid, and that the required marriage license had been
secured.49 Gloria has failed to discharge that burden, and the only conclusion that can be reached is
that no valid marriage license was issued. It cannot be said that there was a simple irregularity in the
marriage license that would not affect the validity of the marriage, as no license was presented by
the respondent. No marriage license was proven to have been issued to Gloria and Syed, based on
the certification of the Municipal Civil Registrar of Carmona, Cavite and Gloria’s failure to produce a
copy of the alleged marriage license.

To bolster its ruling, the CA cited other evidence to support its conclusion that Gloria and Syed were
validly married. To quote the CA:
Moreover, the record is replete with evidence, testimonial and documentary, that appellant and
appellee have been validly married and there was compliance with all the requisites laid down by
law. Both parties are legally capacitated to marry. A certificate of legal capacity was even issued by
the Embassy of Pakistan in favor of appellee. The parties herein gave their consent freely. Appellee
admitted that the signature above his name in the marriage contract was his. Several pictures were
presented showing appellant and appellee, before the solemnizing officer, the witnesses and other
members of appellant’s family, taken during the marriage ceremony, as well as in the restaurant
where the lunch was held after the marriage ceremony. Most telling of all is Exhibit "5-C" which
shows appellee signing the Marriage Contract.

xxxx

The parties have comported themselves as husband and wife and has [sic] one offspring, Aliea
Fatima Goo Abbas, who was born on 15 June 1993. It took appellee more than ten (10) years before
he filed on 01 August 2003 his Petition for Declaration of Nullity of Marriage under Article 4 of the
Family Code. We take serious note that said Petition appears to have been instituted by him only
after an Information for Bigamy (Exhibit "1") dated 10 January 2003 was filed against him for
contracting a second or subsequent marriage with one Ma. Corazon (Maryam) T. Buenaventura. We
are not ready to reward (appellee) by declaring the nullity of his marriage and give him his freedom
and in the process allow him to profit from his own deceit and perfidy.50

All the evidence cited by the CA to show that a wedding ceremony was conducted and a marriage
contract was signed does not operate to cure the absence of a valid marriage license. Article 4 of the
Family Code is clear when it says, "The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35(2)." Article 35(3) of the Family Code
also provides that a marriage solemnized without a license is void from the beginning, except those
exempt from the license requirement under Articles 27 to 34, Chapter 2, Title I of the same
Code.51 Again, this marriage cannot be characterized as among the exemptions, and thus, having
been solemnized without a marriage license, is void ab initio.1âwphi1

As to the motive of Syed in seeking to annul his marriage to Gloria, it may well be that his motives
are less than pure, that he seeks to evade a bigamy suit. Be that as it may, the same does not make
up for the failure of the respondent to prove that they had a valid marriage license, given the weight
of evidence presented by petitioner. The lack of a valid marriage license cannot be attributed to him,
as it was Gloria who took steps to procure the same. The law must be applied. As the marriage
license, a formal requisite, is clearly absent, the marriage of Gloria and Syed is void ab initio.

WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed Decision
dated March 11, 2008 and Resolution dated July 24, 2008 of the Court of Appeals in CA-G.R. CV
No. 86760 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court,
Branch 109, Pasay City dated October 5, 2005 in Civil Case No. 03-0382-CFM annulling the
marriage of petitioner with respondent on January 9, 1993 is hereby REINSTATED.

No costs.

SO ORDERED.

[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 Complaint-Affidavit 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.[1] Four children were born out of that marriage.[2] On 22 March 1993,
however, her husband contracted another marriage with one Luzviminda Payao before
respondent Judge.[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.[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 affidavits[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;
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. [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. [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,[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.[9] And when the law transgressed is simple and elementary, the failure to
know it constitutes gross ignorance of the law.[10]
ACCORDINGLY, the recommendation of the Court Administrator is hereby
ADOPTED, with theMODIFICATION 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. Ncmmis

DECISION

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 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 fathers 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 petitioners
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.

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
fathers death.[1]

Thus, the lower court ruled that petitioners should have filed the action to
declare null and void their fathers marriage to respondent before his death,
applying by analogy Article 47 of the Family Code which enumerates the time
and the persons who could initiate an action for annulment of
marriage. Hence, this petition for review with this Court grounded on a pure
[2]

question of law. Scnc m

This petition was originally dismissed for non-compliance with Section 11,
Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification
failed to state the basis of petitioners 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. However, upon motion of petitioners, this Court reconsidered the
[3]

dismissal and reinstated the petition for review.

[4]

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. A valid marriage license is a requisite of marriage under Article
[5]

53 of the Civil Code, the absence of which renders the marriage void ab
[6]

initio pursuant to Article 80(3) in relation to Article 58. The requirement and
[7] [8]

issuance of marriage license is the States demonstration of its involvement

and participation in every marriage, in the maintenance of which the general
public is interested. This interest proceeds from the constitutional mandate
[9]

that the State recognizes the sanctity of family life and of affording protection
to the family as a basic "autonomous social institution." Specifically, the
[10]

Constitution considers marriage as an "inviolable social institution," and is the

foundation of family life which shall be protected by the State. This is why the
[11]

Family Code considers marriage as "a special contract of permanent

union" and case law considers it "not just an adventure but a lifetime
[12]

commitment." [13]

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, referring to the marriage of a man and a woman who have lived together
[14]

and exclusively with each other as husband and wife for a continuous and
unbroken period of at least 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 applicants name for a marriage license. The publicity attending the
marriage license may discourage such persons from legitimizing their
status. To preserve peace in the family, avoid the peeping and suspicious
[15]

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. Sdaa miso

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 and wife for at least five
years, and that we now desire to marry each other." The only issue that
[16]

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?

Working on the assumption that Pepito and Norma have lived together as
husband and wife for five years without the benefit of marriage, that five-year
period should be computed 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
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 any time 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. The Civil Code provides:
[17]
 Article 63: "x x x. This notice shall request all persons having
knowledge of any impediment to the marriage to advice the local
civil registrar thereof. x x x."

Article 64: "Upon being advised of any alleged impediment to the

marriage, the local civil registrar shall forthwith make an
investigation, examining persons under oath. x x x" Sdaad

This is reiterated in the Family Code thus:

Article 17 provides in part: "x x x. This notice shall request all

persons having knowledge of any impediment to the marriage to
advise the local civil registrar thereof. x x x."

Article 18 reads in part: "x x x. 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. x x x."

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, subject only to the
[18]

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. The law
[19]

sanctions monogamy.

In this case, at the time of Pepito and respondents marriage, it cannot be said
that they have lived with each other as husband and wife for at least five years
prior to their wedding day. From the time Pepitos 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". Scs daad

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 fathers marriage void after his death?

Contrary to respondent judges ruling, Article 47 of the Family Code cannot

[20]

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 any time before
the death of either party" is inapplicable. Article 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 and cannot be the source of rights. The first can be
[21]

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. That is why the action or defense for nullity is imprescriptible, unlike
[22]

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, and its effect on the children
[23]

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. Sup
rema
Contrary to the trial courts ruling, the death of petitioners father extinguished
the alleged marital bond between him and 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.

Jurisprudence under the Civil Code states that no judicial decree is necessary
in order to establish the nullity of a marriage. "A void marriage does not
[24]

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." "Under ordinary circumstances, the effect of a void marriage, so
[25]

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. But Article 40 of the Family Code expressly provides that there must
[26]

be a judicial declaration of the nullity of a previous marriage, though void,

before a party can enter into a second marriage and such absolute nullity
[27]

can be based only on a final judgment to that effect. For the same reason,
[28]

the law makes either the action or defense for the declaration of absolute
nullity of marriage imprescriptible. Corollarily, if the death of either party
[29]

would extinguish the cause of action or the ground for defense, then the same
cannot be considered imprescriptible. Juris

However, other than for purposes of remarriage, no judicial action is

necessary to declare a marriage an absolute nullity. 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.

SO ORDERED.

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the
September 29, 2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414, which
affirmed the April 25, 2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC). declaring the
marriage of Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios) as void from the
beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I.
Calo of the Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a
Certificate of Marriage with Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage
with Fringer. She alleged that immediately after their marriage, they separated and never lived as
husband and wife because they never really had any intention of entering into a married state or
complying with any of their essential marital obligations. She described their marriage as one made
in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed
a motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant
Provincial Prosecutor to conduct an investigation and determine the existence of a collusion. On
October 2, 2007, the Assistant Prosecutor complied and reported that she could not make a
determination for failure of both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the
hearing despite being duly notified of the schedule. After the pre-trial, hearing on the merits ensued.
Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty
Albios and Daniel Lee Fringer as void from the very beginning. As a necessary consequence of this
pronouncement, petitioner shall cease using the surname of respondent as she never acquired any
right over it and so as to avoid a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence
to the testimony of Albios, it stated that she contracted Fringer to enter into a marriage to enable her
to acquire American citizenship; that in consideration thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the parties went their separate ways; that Fringer returned to the
United States and never again communicated with her; and that, in turn, she did not pay him the
$2,000.00 because he never processed her petition for citizenship. The RTC, thus, ruled that when
marriage was entered into for a purpose other than the establishment of a conjugal and family life,
such was a farce and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed
a motion for reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the
motion for want of merit. It explained that the marriage was declared void because the parties failed
to freely give their consent to the marriage as they had no intention to be legally bound by it and
used it only as a means to acquire American citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that
the essential requisite of consent was lacking. The CA stated that the parties clearly did not
understand the nature and consequence of getting married and that their case was similar to a
marriage in jest. It further explained that the parties never intended to enter into the marriage
contract and never intended to live as husband and wife or build a family. It concluded that their
purpose was primarily for personal gain, that is, for Albios to obtain foreign citizenship, and for
Fringer, the consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A

MARRIAGE CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS
DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for
Fringer to be paid $2,000.00, both parties freely gave their consent to the marriage, as they
knowingly and willingly entered into that marriage and knew the benefits and consequences of being
bound by it. According to the OSG, consent should be distinguished from motive, the latter being
inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest.
The parties here intentionally consented to enter into a real and valid marriage, for if it were
otherwise, the purpose of Albios to acquire American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her
marriage was similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on
certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole
purpose of acquiring American citizenship in consideration of $2,000.00, void ab initio on the ground
of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for
the purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of
marriage fraud for the sole purpose of availing of particular benefits. In the United States, marriages
where a couple marries only to achieve a particular purpose or acquire specific benefits, have been
referred to as "limited purpose" marriages.11 A common limited purpose marriage is one entered into
solely for the legitimization of a child.12 Another, which is the subject of the present case, is for
immigration purposes. Immigration law is usually concerned with the intention of the couple at the
time of their marriage,13 and it attempts to filter out those who use marriage solely to achieve
immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established the
principal test for determining the presence of marriage fraud in immigration cases. It ruled that a
"marriage is a sham if the bride and groom did not intend to establish a life together at the time they
were married. "This standard was modified with the passage of the Immigration Marriage Fraud
Amendment of 1986 (IMFA), which now requires the couple to instead demonstrate that the
marriage was not "entered into for the purpose of evading the immigration laws of the United States."
The focus, thus, shifted from determining the intention to establish a life together, to determining the
intention of evading immigration laws.16 It must be noted, however, that this standard is used purely
for immigration purposes and, therefore, does not purport to rule on the legal validity or existence of
a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited
purpose of immigration is also legally void and in existent. The early cases on limited purpose
marriages in the United States made no definitive ruling. In 1946, the notable case of
United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the
country, the parties had agreed to marry but not to live together and to obtain a divorce within six
months. The Court, through Judge Learned Hand, ruled that a marriage to convert temporary into
permanent permission to stay in the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to
every contract; and no matter what forms or ceremonies the parties may go through indicating the
contrary, they do not contract if they do not in fact assent, which may always be proved. x x x
Marriage is no exception to this rule: a marriage in jest is not a marriage at all. x x x It is quite true
that a marriage without subsequent consummation will be valid; but if the spouses agree to a
marriage only for the sake of representing it as such to the outside world and with the understanding
that they will put an end to it as soon as it has served its purpose to deceive, they have never really
agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood,
and it is not ordinarily understood as merely a pretence, or cover, to deceive others.18

(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines,19 which declared as
valid a marriage entered into solely for the husband to gain entry to the United States, stating that a
valid marriage could not be avoided "merely because the marriage was entered into for a limited
purpose."20 The 1980 immigration case of Matter of McKee,21 further recognized that a fraudulent or
sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as
problematic. The problem being that in order to obtain an immigration benefit, a legal marriage is first
necessary.22 At present, United States courts have generally denied annulments involving" limited
purpose" marriages where a couple married only to achieve a particular purpose, and have upheld
such marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into
for a purpose other than the establishment of a conjugal and family life, such was a farce and should
not be recognized from its inception. In its resolution denying the OSG’s motion for reconsideration,
the RTC went on to explain that the marriage was declared void because the parties failed to freely
give their consent to the marriage as they had no intention to be legally bound by it and used it only
as a means for the respondent to acquire American citizenship. Agreeing with the RTC, the CA ruled
that the essential requisite of consent was lacking. It held that the parties clearly did not understand
the nature and consequence of getting married. As in the Rubenstein case, the CA found the
marriage to be similar to a marriage in jest considering that the parties only entered into the marriage
for the acquisition of American citizenship in exchange of $2,000.00. They never intended to enter
into a marriage contract and never intended to live as husband and wife or build a family.

The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of consent.
Under Article 2 of the Family Code, consent is an essential requisite of marriage. Article 4 of the
same Code provides that the absence of any essential requisite shall render a marriage void ab
initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence
of a solemnizing officer. A "freely given" consent requires that the contracting parties willingly and
deliberately enter into the marriage. Consent must be real in the sense that it is not vitiated nor
rendered defective by any of the vices of consent under Articles45 and 46 of the Family Code, such
as fraud, force, intimidation, and undue influence.24Consent must also be conscious or intelligent, in
that the parties must be capable of intelligently understanding the nature of, and both the beneficial
or unfavorable consequences of their act.25 Their understanding should not be affected by insanity,
intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real
consent because it was not vitiated nor rendered defective by any vice of consent. Their consent
was also conscious and intelligent as they understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing impaired their ability to do so. That their
consent was freely given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and deliberately
contracted the marriage. There was a clear intention to enter into a real and valid marriage so as to
fully comply with the requirements of an application for citizenship. There was a full and complete
understanding of the legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as akin to a
marriage by way of jest. A marriage in jest is a pretended marriage, legal in form but entered into as
a joke, with no real intention of entering into the actual marriage status, and with a clear
understanding that the parties would not be bound. The ceremony is not followed by any conduct
indicating a purpose to enter into such a relation.27 It is a pretended marriage not intended to be real
and with no intention to create any legal ties whatsoever, hence, the absence of any genuine
consent. Marriages in jest are void ab initio, not for vitiated, defective, or unintelligent consent, but
for a complete absence of consent. There is no genuine consent because the parties have
absolutely no intention of being bound in any way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios and Fringer had an
1âwphi1

undeniable intention to be bound in order to create the very bond necessary to allow the respondent
to acquire American citizenship. Only a genuine consent to be married would allow them to further
their objective, considering that only a valid marriage can properly support an application for
citizenship. There was, thus, an apparent intention to enter into the actual marriage status and to
create a legal tie, albeit for a limited purpose. Genuine consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a
conjugal and family life. The possibility that the parties in a marriage might have no real intention to
establish a life together is, however, insufficient to nullify a marriage freely entered into in
accordance with law. The same Article 1 provides that the nature, consequences, and incidents of
marriage are governed by law and not subject to stipulation. A marriage may, thus, only be declared
void or voidable under the grounds provided by law. There is no law that declares a marriage void if
it is entered into for purposes other than what the Constitution or law declares, such as the
acquisition of foreign citizenship. Therefore, so long as all the essential and formal requisites
prescribed by law are present, and it is not void or voidable under the grounds provided by law, it
shall be declared valid.28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate
on the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into
the realm of their right to privacy and would raise serious constitutional questions.29 The right to
marital privacy allows married couples to structure their marriages in almost any way they see fit, to
live together or live apart, to have children or no children, to love one another or not, and so
on.30 Thus, marriages entered into for other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they comply with all the legal requisites,31are
equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid cause
for marriage. Other considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for dishonest
purposes, It cannot declare the marriage void. Hence, though the respondent’s marriage may be
considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues
to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the
Family Code. Only the circumstances listed under Article 46 of the same Code may constitute fraud,
namely, (1) non- disclosure of a previous conv1ctwn involving moral turpitude; (2) concealment by
the wife of a pregnancy by another man; (3) concealment of a sexually transmitted disease; and (4)
concealment of drug addiction, alcoholism, or homosexuality. No other misrepresentation or deceit
shall constitute fraud as a ground for an action to annul a marriage. Entering into a marriage for the
sole purpose of evading immigration laws does not qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground of fraud may only be brought by the injured or innocent
party. In the present case, there is no injured party because Albios and Fringer both conspired to
enter into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with
Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot
declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they
have availed of its benefits, or simply have no further use for it. These unscrupulous individuals
cannot be allowed to use the courts as instruments in their fraudulent schemes. Albios already
misused a judicial institution to enter into a marriage of convenience; she should not be allowed to
again abuse it to get herself out of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the
foundation of the family and shall be protected by the State.32 It must, therefore, be safeguarded
from the whims and caprices of the contracting parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs of the parties, and just as easily nullified
when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals
in CA-G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of
merit.

SO ORDERED.

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.: ñé+.£ªw ph!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 Extra-Judicial
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:têñ.£îhqwâ£

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 Gee1 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: têñ.£îhqwâ£

... 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: têñ.£îhqwâ£

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. 1äwphï1.ñët

Fiel v Banawa

VOID MARRIAGES

G.R. No. L-5877 September 28, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARTURO MENDOZA, defendant-appellant.

Nestor A. Andrada for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felicisimo R. Rosete for appellee.

PARAS, C.J.:

The defendant, Arturo Mendoza, has appealed from a judgment of the Court of First Instance of
Laguna, finding him guilty of the crime of bigamy and sentencing him to imprisonment for an
indeterminate term of from 6 months and 1 day to 6 years, with costs.

The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis were
married in Marikina, Rizal. On May 14, 1941, during the subsistence of the first marriage, the
appellant was married to Olga Lema in the City of Manila. On February 2, 1943, Jovita de Asis died.
On August 19, 1949, the appellant contracted another marriage with Carmencita Panlilio in
Calamba, Laguna. This last marriage gave rise to his prosecution for and conviction of the crime of
bigamy.

The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and void and,
therefore, non-existent, having been contracted while his first marriage with Jovita de Asis August 5,
1936 was still in effect, and that his third marriage to Carmencita Panlilio on August 19, 1949 cannot
be the basis of a charge for bigamy because it took place after the death of Jovita de Asis. The
Solicitor General, however, argues that, even assuming that appellant's second marriage to Olga
Lema is void, he is not exempt from criminal liability, in the absence of a previous judicial annulment
of said bigamous marriage; and the case of People vs. Cotas, 40 Off. Gaz., 3134, is cited.

The decision invoked by the Solicitor General, rendered by the Court of Appeals, is not controlling.
Said case is essentially different, because the defendant therein, Jose Cotas, impeached the validity
of his first marriage for lack of necessary formalities, and the Court of Appeals found his factual
contention to be without merit.
In the case at bar, it is admitted that appellant's second marriage with Olga Lema was contracted
during the existence of his first marriage with Jovita de Asis. Section 29 of the marriage law (act
3613), in force at the time the appellant contracted his second marriage in 1941, provides as
follows:1âwphï l.nêt

Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime
of the first spouse of such person with any person other than such first spouse shall be illegal
and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, or the absentee being generally considered as dead and believed to be so by
the spouse present at the time of contracting such subsequent marriage, the
marriage so contracted being valid in either case until declared null and void by a
competent court.

This statutory provision 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 annulable marriages. There is here no pretence
that appellant's second marriage with Olga Lema was contracted in the belief that the first spouse,
Jovita de Asis, has 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 competent court. 1âwphïl.nêt

Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted, with costs de
officio so ordered.

Pablo, Bengzon, Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.

Separate Opinions

REYES, J., dissenting:

I dissent.

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 logical may say that where 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 santidad e importancia del matrinonio no permite que
los casados juzguen por si mismos de su nulidad; esta ha de someterse precisamente al judicio del
Tribunal competente, 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, y de consiguente, el que contrae otro segundo antes de dicha declaracion 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
Off. Gaz., 3145, "and is in line with the well-known rule established in cases of adultery, that "until by
competent authority in a final judgment the marriage contract is set aside, the offense to the vows
taken and the attack on the family exist."

Padilla and Montemayor, JJ., concur.

G.R. No. L-10016 February 28, 1957

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 Gorrea's 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 Off. Gaz., [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 appellant's
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 appellant's 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 Off. Gaz. 3145, "and is in line with the well-known rule established in cases of
adultery, that "until by competent authority in a final judgment the marriage contract is set
aside, the offense to the vows taken and the attack on the family exists."

I may add that the construction placed by the majority upon the law penalizing bigamy would
frustrate the legislative intent rather than give effect thereto.

Padilla and Montemayor, JJ., concur.

G.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 pre-trial 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.

SO ORDERED.

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,

vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA,
BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.

Leopoldo P. Dela Rosa for petitioner.

Emiterio C. Manibog for private respondent.

City Fiscal of Manila for public respondent.

GANCAYCO, J.:

In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a criminal
case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of marriage
pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent
judge ruled in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila
acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein
petitioner, Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case
No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the
complaint of private respondent Paz B. Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed with the
Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her
marriage with petitioner contracted on September 26, 1978, which action was docketed as Civil
Case No. E-02627. Said civil case was based on the ground that private respondent consented to
entering into the marriage, which was petitioner Donato's second one, since she had no previous
knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978.
Petitioner Donato's answer in the civil case for nullity interposed the defense that his second
marriage was void since it was solemnized without a marriage license and that force, violence,
intimidation and undue influence were employed by private respondent to obtain petitioner's consent
to the marriage. Prior to the solemnization of the subsequent or second marriage, petitioner and
private respondent had lived together and deported themselves as husband and wife without the
benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by
them on September 26, 1978, for which reason, the requisite marriage license was dispensed with
pursuant to Article 76 of the New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to
suspend the proceedings of said case contending that Civil Case No. E-02627 seeking the
annulment of his second marriage filed by private respondent raises a prejudicial question which
must first be determined or decided before the criminal case can proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the
proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the
ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the proceedings
in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds
for suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs.
Ejercito 2 which was a much later case than that cited by respondent judge in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April 14,
1980, for lack of merit. Hence, the present petition for certiorari and prohibition with preliminary
injunction.

A prejudicial question has been defined to be one which arises in a case, the resolution of which
question is a logical antecedent of the issue involved in said case, and the cognizance of which
pertains to another tribunal.3 It is one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the accused, and for it to
suspend the criminal action, it must appear not only that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in the resolution of the issue
or issues raised in the civil case, the guilt or innocence of the accused would necessarily be
determined. 4 A prejudicial question usually comes into play in a situation where a civil action and a
criminal action may proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the accused in a criminal case.5

The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the
issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second
marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy.
Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed
the complaint for annulment of the second marriage on the ground that her consent was obtained
through deceit.

Petitioner Donato raised the argument that the second marriage should have been declared null and
void on the ground of force, threats and intimidation allegedly employed against him by private
respondent only sometime later when he was required to answer the civil action for anulment of the
second marriage. The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied
to the present case. Said case states that:

The mere fact that there are actions to annul the marriages entered into by the
accused in a bigamy case does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the suspension of the case. In order
that the case of annulment of marriage be considered a prejudicial question to the
bigamy case against the accused, it must be shown that the petitioner's consent to
such marriage must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be involuntary and
cannot be the basis of his conviction for the crime of bigamy. The situation in the
present case is markedly different. At the time the petitioner was indicted for bigamy
on February 27, 1963, the fact that two marriage ceremonies had been contracted
appeared to be indisputable. And it was the second spouse, not the petitioner who
filed the action for nullity on the ground of force, threats and intimidation. And it was
only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-
party complaint against the first spouse alleging that his marriage with her should be
declared null and void on the ground of force, threats and intimidation. Assuming that
the first marriage was null and void on the ground alleged by petitioner, the fact
would not be material to the outcome of the case. Parties to the marriage should not
be permitted to judge for themselves its nullity, for the same must be submitted to the
judgment of the competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration the
presumption is that the marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy. The lower court therefore, has not abused much
less gravely abused, its discretion in failing to suspend the hearing as sought by
petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage
has been obtained by the use of threats, force and intimidation.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later
case and as such it should be the one applied to the case at bar. We cannot agree. The situation in
the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who
was charged with bigamy for having contracted a second marriage while a previous one existed.
Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of
duress, as contra-distinguished from the present case wherein it was private respondent Paz B.
Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the
ground that her consent was obtained through deceit since she was not aware that petitioner's
marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil
case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or
innocence of the accused in the criminal case. In the present case, there is as yet no such judgment
in the civil case.

Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule
on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial
question to the bigamy case against the accused only if it is proved that the petitioner's consent to
such marriage was obtained by means of duress, violence and intimidation in order to establish that
his act in the subsequent marriage was an involuntary one and as such the same cannot be the
basis for conviction. The preceding elements do not exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the
criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978,
he had been living with private respondent Paz B. Abayan as husband and wife for more than five
years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by
private respondent through force, violence, intimidation and undue influence in entering a
subsequent marriage is belled by the fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband and wife without benefit of marriage
for five years, one month and one day until their marital union was formally ratified by the second
marriage and that it was private respondent who eventually filed the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only when Civil
Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the
solemnization of the second marriage that petitioner came up with the story that his consent to the
marriage was secured through the use of force, violence, intimidation and undue influence.
Petitioner also continued to live with private respondent until November 1978, when the latter left
their abode upon learning that Leonilo Donato was already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not
err in his earlier order. There is no pivotal issue that must be pre-emptively resolved in Civil Case
No. E-02627 before proceedings in the criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the
respondent judge dated April 14, 1980 should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit.
We make no pronouncement as to costs.

SO ORDERED.

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant,

vs.
ATTY. JORDAN TERRE, respondent.
PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged respondent Jordan Terre, a member
of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second marriage and living with another woman other than
complainant, while his prior marriage with complainant remained subsisting.

The Court resolved to require respondent to answer the complaint. 1 Respondent successfully evaded five (5) attempts to serve a copy of
the Court's Resolution and of the complaint by moving from one place to another, such that he could not be found nor reached in his alleged
place of employment or residence. 2 On 24 April 1985, that is after three (3) years and a half, with still no answer from the respondent, the
Court noted respondent's success in evading service of the complaint and the Court's Resolution and thereupon resolved to "suspend
respondent Atty. Jordan Terre from the practice of law until after he appears and/or files his answer to the complaint against him" in the
instant
case. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift Suspension Order. In his Answer, Atty.
Terre averred that he had contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her representation that she was single;
that he subsequently learned that Dorothy was married to a certain Merlito A. Bercenilla sometime in 1968; that when he confronted Dorothy
about her prior marriage, Dorothy drove him out of their conjugal residence; that Dorothy had mockingly told him of her private meetings with
Merlito A. Bercenilla and that the child she was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his
marriage to complainant was null and void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and insisted that Jason was the child of
respondent Jordan Terre, as evidenced by Jason's Birth Certificate and physical resemblance to respondent. Dorothy further explained that
while she had given birth to Jason Terre at the PAFGH registered as a dependent of Merlito Bercenilla, she had done so out of extreme
necessity and to avoid risk of death or injury to the fetus which happened to be in a difficult breech position. According to Dorothy, she had
then already been abandoned by respondent Jordan Terre, leaving her penniless and without means to pay for the medical and hospital bills
arising by reason of her pregnancy.

The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by a Resolution dated 6 January 1986,
the complaint to the Office of the Solicitor General for investigation, report and recommendation. 5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set the case for hearing on 7 July 1986
with notice to both parties. On 7 July 1986, complainant Dorothy appeared and presented her evidence ex parte, since respondent did not so
appear. 6 The Investigating Solicitor scheduled and held another hearing on 19 August 1986, where he put clarificatory questions to the
complainant; respondent once again did not appear despite notice to do so. Complainant finally offered her evidence and rested her case.
The Solicitor set still another hearing for 2 October 1986, notifying respondent to present his evidence with a warning that should he fail once
more to appear, the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986. The Investigating
Solicitor accordingly considered respondent to have waived his right to present evidence and declared the case submitted for resolution. The
parties were given time to submit their respective memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did not
file his memorandum.

On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to this Court. The Report summarized
the testimony of the complainant in the following manner:

Complainant Dorothy Terre took the witness stand and testified substantially as follows: she and respondent met for
the first time in 1979 as fourth year high school classmates in Cadiz City High School (tsn, July 7, 1986, p. 9); she was
then married to Merlito Bercenilla, while respondent was single (id.); respondent was aware of her marital status (ibid,
p. 14); it was then that respondent started courting her but nothing happened of the courtship (ibid, p. 10); they
[complainant and respondent] moved to Manila were they respectively pursued their education, respondent as a law
student at the Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting her, this time with
more persistence (ibid, p. 11); she decided nothing would come of it since she was married but he [respondent]
explained to her that their marriage was void ab initio since she and her first husband were first cousins (ibid, p. 12);
convinced by his explanation and having secured favorable advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage license, despite her [complainant's]
objection, he [respondent] wrote "single" as her status explaining that since her marriage was void ab initio, there was
no need to go to court to declare it as such (ibid, 14-15); they were married before Judge Priscilla Mijares of the City
Court of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17); Jason Terre was born of their union on June
25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18); all through their married state up to the time he [respondent] disappeared
in 1981, complainant supported respondent, in addition to the allowance the latter was getting from his parents (ibid,
pp. 19-20); she was unaware of the reason for his disappearance until she found out later that respondent married a
certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed a case for abandonment of minor
with the City Fiscal of Pasay City (ibid, p. 23) which was subsequently filed before Branch II of the City Court of Pasay
City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy against
respondent and Helina Malicdem with the office of the Provincial Fiscal of Pangasinan, where a prima facie case was
found to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case against
respondent with the Commission on Audit where he was employed, which case however was considered closed for
being moot and academic when respondent was considered automatically separated from the service for having gone
on absence without official leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7
There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre contracted marriage on 14 July 1977 before
Judge Priscilla Mijares. There is further no dispute over the fact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in
Dasol, Pangasinan. When the second marriage was entered into, respondent's prior marriage with complainant was subsisting, no judicial
action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his prior marriage with complainant
Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity was necessary.

The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent has not rebutted
complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. In the second place, that pretended
defense is the same argument by which he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage
with the respondent. Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the
prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage,
a judicial declaration that the first marriage was null and void ab initio is essential. 8 Even if we were to assume, arguendo merely, that
Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own argument, his
first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second marriage to Helina Malicdem must be
regarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by other circumstances. As noted, he convinced the
complainant that her prior marriage to Bercenilla was null and void ab initio, that she was still legally single and free to marry him. When
complainant and respondent had contracted their marriage, respondent went through law school while being supported by complainant, with
some assistance from respondent's parents. After respondent had finished his law course and gotten complainant pregnant, respondent
abandoned the complainant without support and without the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently displayed, not only his unfitness to
remain as a member of the Bar, but likewise his inadequacy to uphold the purpose and responsibility of his gender" because marriage is a
basic social institution. 9

In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the oath as a member of the Bar and to sign the Roll of
Attorneys, said through Mme. Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for membership in the legal profession. Whether
the marriage was a joke as respondent claims, or a trick played on her as claimed by complainant, it does not speak
well of respondent's moral values. Respondent had made a mockery of marriage, a basic social institution which public
policy cherishes and protects (Article 216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral conduct" because he made a dupe of complainant,
living on her bounty and allowing her to spend for his schooling and other personal necessities while dangling before her the mirage of a
marriage, marrying another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to demand money
from complainant. . . . ." The Court held such acts "indicative of a character not worthy of a member of the Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract a second marriage
with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him through law school, leaving her without
means for the safe delivery of his own child; in contracting a second marriage with Helina Malicdem while his first marriage with complainant
Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than
sufficient basis for disbarment of respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. The Court will correct
this error forthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from the Roll of Attorneys. A copy of
this decision shall be spread on the personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy of this resolution shall
also be furnished to the Integrated Bar of the Philippines and shall be circularized to all the courts of the land.

SO ORDERED.
REPUBLIC OF THE PHILIPPINES, G. R. No. 187512
Petitioner,
Present:

CARPIO, J., Chairperson,

- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

YOLANDA CADACIO GRANADA,

Respondent. Promulgated:

June 13, 2012

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

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January
2009[1] and 3 April 2009[2] issued by the Court of Appeals (CA), which affirmed the
grant by the Regional Trial Court (RTC) of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent.
 In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus
Granada (Cyrus) at Sumida Electric Philippines, an electronics
company in Paranaque where both were then working. The two eventually got
married at the Manila City Hall on 3 March 1993. Their marriage resulted in the
birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus
went to Taiwan to seek employment. Yolanda claimed that from that time, she had
not received any communication from her husband, notwithstanding efforts to
locate him. Her brother testified that he had asked the relatives of Cyrus regarding
the latters whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared
presumptively dead. The Petition was raffled to Presiding Judge Avelino Demetria
of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as

presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by the

Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this
Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to
locate Cyrus and thus failed to prove her well-founded belief that he was already
dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably
under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss
on the ground that the CA had no jurisdiction over the appeal. She argued that her
Petition for Declaration of Presumptive Death, based on Article 41 of the Family
Code, was a summary judicial proceeding,
in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas

Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v. Bermudez-
Lorino,[3] the CA ruled that a petition for declaration of presumptive death under
Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by
the CA in a Resolution dated 3 April 2009.[4]

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the Petition

on the ground that the Decision of the RTC in a summary proceeding
for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to
ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs

grant of the Petition for Declaration of Presumptive Death under
Article 41 of the Family Code based on the evidence that respondent
presented

Our Ruling

1. On whether the CA seriously erred in

dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for
the declaration of presumptive death is
immediately final and executory upon notice to
the parties and, hence, is not subject to ordinary
appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the

Petition assailing the RTCs grant of the Petition for Declaration of Presumptive
Death of the absent spouse under Article 41 of the Family Code. Citing Republic v.
Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary judicial proceeding
under the Family Code. Hence, the RTC Decision therein is immediately final and
executory upon notice to the parties, by express provision of Article 247 of the
same Code. The decision is therefore not subject to ordinary appeal, and the
attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse

for the purpose of contracting a subsequent marriage under Article 41 of the Family
Code is a summary proceeding as provided for under the Family Code.
 Further, Title XI of the Family Code is entitled Summary Judicial Proceedings
in the Family Law. Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply
in all cases provided for in this Code requiring summary court proceedings. Such cases
shall be decided in an expeditious manner without regard to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that
since a petition for declaration of presumptive death is a summary proceeding, the
judgment of the court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs

affirmation of the RTCs grant of respondents Petition for Declaration of
Presumptive Death of her absent spouse. The Court therein held that it was an error
for the Republic to file a Notice of Appeal when the latter elevated the matter to
the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary

period within which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family Code, supra, are immediately final
and executory.

xxx xxx xxx

 But, if only to set the records straight and for the future guidance of the bench
and the bar, let it be stated that the RTCs decision dated November 7, 2001, was
immediately final and executory upon notice to the parties. It was erroneous for the OSG
to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals
acquired no jurisdiction over the case, and should have dismissed the appeal outright on
that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the result
reached by the Court in Republic v. Bermudez-Lorino, additionally opined that what
the OSG should have filed was a petition for certiorari under Rule 65, not a petition
for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been
superseded by the subsequent Decision of the Court in Republic v. Jomoc,[7] issued
a few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of

Presumptive Death of her absent husband for the purpose of remarriage. Petitioner
Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court
disapproved the Notice of Appeal on the ground that, under
the Rules of Court,[8] a record on appeal is required to be filed when appealing
special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this
Court clarified that while an action for declaration of death or absence under Rule
72, Section 1(m), expressly falls under the category of special proceedings, a
petition for declaration of presumptive death under Article 41 of the Family Code
is a summary proceeding, as provided for by Article 238 of the same Code. Since its
purpose was to enable her to contract a subsequent valid marriage, petitioners
action was a summary proceeding based on Article 41 of the Family Code, rather
than a special proceeding under Rule 72 of the Rules of Court. Considering that this
action was not a special proceeding, petitioner was notrequired to file a record on
appeal when it appealed the RTC Decision to the CA.

We do not agree with the Republics argument that Republic v.

Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the
CA, the Supreme Court in Jomoc did not expound on the characteristics of a
summary proceeding under the Family Code. In contrast, the Court in Bermudez-
Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a
vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended
to set the records straight and for the future guidance of the bench and the bar.

At any rate, four years after Jomoc, this Court settled the rule regarding
appeal of judgments rendered in summary proceedings under the Family Code
when it ruled in Republic v. Tango:[9]

This case presents an opportunity for us to settle the rule on appeal of judgments
rendered in summary proceedings under the Family Code and accordingly, refine our
previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the
Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 217, insofar as they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and
executory.
 By express provision of law, the judgment of the court in a summary proceeding
shall be immediately final and executory. As a matter of course, it follows that no appeal
can be had of the trial court's judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction. Such petition should be
filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To
be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of court forum. From the decision of the Court
of Appeals, the losing party may then file a petition for review on certiorari under Rule 45
of the Rules of Court with the Supreme Court. This is because the errors which the court
may commit in the exercise of jurisdiction are merely errors of judgment which are the
proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary
proceeding for the declaration of presumptive death may file a petition for
certiorari with the CA on the ground that, in rendering judgment thereon, the trial
court committed grave abuse of discretion amounting to lack of jurisdiction. From
the decision of the CA, the aggrieved party may elevate the matter to this Court via
a petition for review on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republics
Notice of Appeal on the ground that the RTC judgment on the Petition for
Declaration of Presumptive Death of respondents spouse was immediately final
and executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in

affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that
respondent had presented

Petitioner also assails the RTCs grant of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent on the ground that she had
not adduced the evidence required to establish a well-founded belief that her
absent spouse was already dead, as expressly required by Article 41 of the Family
Code. Petitioner cites Republic v. Nolasco,[10] United States v.
Biasbas and Republic v. Court of Appeals and Alegro[12] as authorities on the
[11]

subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of

the RTCs grant of respondents Petition for Declaration of Presumptive Death of his
absent spouse, a British subject who left their home in the Philippines soon after
giving birth to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the ground that
respondent was not able to establish
his well-founded belief that the absentee is already dead, as required by Article 41
of the Family Code. In ruling thereon, this Court recognized that this provision
imposes more stringent requirements than does Article 83 of the Civil Code.[13] The
Civil Code provision merely requires either that there be no news that the absentee
is still alive; or that the absentee is generally considered to be dead and is believed
to be so by the spouse present, or is presumed dead under Articles 390 and 391 of
the Civil Code. In comparison, the Family Code provision prescribes a well-founded
belief that the absentee is already dead before a petition for declaration of
presumptive death can be granted. As noted by the Court in that case, the four
requisites for the declaration of presumptive death under the Family Code are as
follows:

1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the
circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.

In evaluating whether the present spouse has been able to prove the
existence of a well-founded belief that the absent spouse is already dead, the Court
in Nolasco cited United States v. Biasbas,[14] which it found to be instructive as to
the diligence required in searching for a missing spouse.
 In Biasbas, the Court held that defendant Biasbas failed to exercise due
diligence in ascertaining the whereabouts of his first wife, considering his admission
that that he only had a suspicion that she was dead, and that the only basis of that
suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic

sought the reversal of the CA ruling affirming the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse on the ground that the
respondent therein had not been able to prove a well-founded belief that his
spouse was already dead. The Court reversed the CA, granted the Petition, and
provided the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent
and that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what is
meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia
sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It
may be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded in
truth. Any fact or circumstance relating to the character, habits, conditions, attachments,
prosperity and objects of life which usually control the conduct of men, and are the
motives of their actions, was, so far as it tends to explain or characterize their
disappearance or throw light on their intentions, competence [sic] evidence on the
ultimate question of his death.
 The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead. Whether or not the spouse
present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and the
nature and extent of the inquiries made by present spouse. (Footnotes omitted,
underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out
that respondent Yolanda did not initiate a diligent search to locate her absent
husband. While her brother Diosdado Cadacio testified to having inquired about
the whereabouts of Cyrus from the latters relatives, these relatives were not
presented to corroborate Diosdados testimony. In short, respondent was allegedly
not diligent in her search for her husband. Petitioner argues that if she were, she
would have sought information from the Taiwanese Consular Office or assistance
from other government agencies in Taiwan or the Philippines. She could have also
utilized mass media for this end, but she did not. Worse, she failed to explain these
omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained

to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her
well-founded belief that her absent spouse was already dead prior to her filing of
the Petition to declare him presumptively dead is already final and can no longer
be modified or reversed. Indeed, [n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of fact or law.[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court of

Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165
are AFFIRMED.
 SO ORDERED.

G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION

BRION, J.:

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15,
2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc.
Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband,
presumptively dead under Article 41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband
and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by: (1) the respondent’s inability to
reach "sexual climax" whenever she and Jerry would have intimate moments; and (2) Jerry’s
expression of animosity toward the respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent
ever saw him. Since then, she had not seen, communicated nor heard anything from Jerry or about
his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition4for her husband’s declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded belief that Jerry
was already dead. She alleged that she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding Jerry, she
also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring
Jerry presumptively dead. It concluded that the respondent had a well-founded belief that her
husband was already dead since more than four (4) years had passed without the former receiving
any news about the latter or his whereabouts. The dispositive portion of the order dated December
15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F. Cantor.5

The Ruling of the CA

The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the
CA dismissed the petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, and,
accordingly, fully affirmed the latter’s order, thus:

WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed
Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED
in toto.7

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner
contends that certiorari lies to challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Rule 41 of the Family
Code. It maintains that although judgments of trial courts in summary judicial proceedings, including
presumptive death cases, are deemed immediately final and executory (hence, not appeal able
under Article 247 of the Family Code), this rule does not mean that they are not subject to review
on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husband’s presumptive death. It claims that the respondent failed to conduct the
requisite diligent search for her missing husband. Likewise, the petitioner invites this Court’s
attention to the attendant circumstances surrounding the case, particularly, the degree of search
conducted and the respondent’s resultant failure to meet the strict standard under Article 41 of the
Family Code.

The Issues

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts
in petitions for declaration of presumptive death of an absent spouse under Article 41 of the
Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.

Article 41,in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.

Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as against
the parties but even as against the courts.8 Modification of the court’s ruling, no matter how
erroneous is no longer permissible. The final and executory nature of this summary proceeding thus
prohibits the resort to appeal. As explained in Republic of the Phils. v. Bermudez-Lorino,9 the right to
appeal is not granted to parties because of the express mandate of Article 247 of the Family Code,
to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of [Article] 247, Family Code, supra, are "immediately final and executory." It was erroneous,
therefore, on the part of the RTCto give due course to the Republic’s appeal and order the
transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law,
is immediately final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is
not a natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and executory," the right to appeal was not granted
to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001. [emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence
tells us that no appeal can be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse
of discretion amounting to lack or excess of jurisdiction that transpired.

As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not
automatically negate the original action of the CA to issue certiorari, prohibition and mandamus in
connection with orders or processes issued by the trial court. Certiorari may be availed of where a
court has acted without or in excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:

"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules."

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:

"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable."(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and executory."

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of the
trial court's judgment ina summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of
Court to question the RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:
 1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.12

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of
the Family Code are present. Since it is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the
burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere
allegation is not evidence.13

Declaration of Presumptive Death

Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death can be granted. We have had
occasion to make the same observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:

Under Article 41, the time required for the presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive death to enable the spouse present
to remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code:
Article 83 of the Civil Code merely requires either that there be no news that such absentee is still
alive; or the absentee is generally considered to be dead and believed to be so by the spouse
present, or is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon
the other hand, prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that
such absentee is still alive, failure to communicate or general presumption of absence under the
Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family
Code places upon the present spouse the burden of proving the additional and more stringent
requirement of "well-founded belief" which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, that the absent spouse is still alive or is already dead.15

The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the absent spouseis already
dead. It requires exertion of active effort (not a mere passive one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the
following relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present
spouse failed to prove that he had a well-founded belief that his absent spouse was already dead
before he filed his petition. His efforts to locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among his
friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court
found that he failed to present the persons from whom he allegedly made inquiries and only reported
his wife’s absence after the OSG filed its notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief"
under Article 41 of the Family Code:

The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still
alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by [the] present spouse.18

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing of the petition. In this case, the present
spouse alleged that her brother had made inquiries from their relatives regarding the absent
spouse’s whereabouts. The present spouse did not report to the police nor seek the aid of the mass
media. Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth Div.),20 the
Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda
did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquiredabout the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s testimony. In short, respondent was allegedly not
diligent in her search for her husband. Petitioner argues that if she were, she would have sought
information from the Taiwanese Consular Office or assistance from other government agencies in
Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not.
Worse, she failed to explain these omissions.

iii.Republic v. Nolasco21

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who
had been missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The
Court ruled that the present spouse’s investigations were too sketchy to form a basis that his
wife was already dead and ruled that the pieces of evidence only proved that his wife had
chosen not to communicate with their common acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry, which consisted of the following:

(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends;
and

(2) Whenever she went to a hospital, she saw to it that she looked through the patients’
directory, hoping to find Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by
jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be inferred from the
1âwphi1

records that her hospital visits and her consequent checking of the patients’ directory therein were
unintentional. She did not purposely undertake a diligent search for her husband as her hospital
visits were not planned nor primarily directed to look for him. This Court thus considers these
attempts insufficient to engender a belief that her husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to
look for him. While a finding of well-founded belief varies with the nature of the situation in which the
present spouse is placed, under present conditions, we find it proper and prudent for a present
spouse, whose spouse had been missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present spouse’s bare assertion that he
inquired from his friends about his absent spouse’s whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a well-
founded belief other than her bare claims that she inquired from her friends and in-laws about her
husband’s whereabouts. In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search because her alleged efforts are insufficient to form a
well-founded belief that her husband was already dead. As held in Republic of the Philippines v.
Court of Appeals (Tenth Div.),22 "[w]hether or not the spouse present acted on a well-founded belief
of death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and the
natureand extent of the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the "strictstandard" approach. This is to ensure that a petition for
declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently circumvent the laws. Courts should never allow procedural shortcuts and should ensure
that the stricter standard required by the Family Code is met. In Republic of the Philippines v. Court
of Appeals (Tenth Div.),23 we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even
possible that those who cannot have their marriages xxx declared null and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature
of its proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s
policy to protect and strengthen the institution of marriage.24 Since marriage serves as the family’s
foundation25 and since it is the state’s policy to protect and strengthen the family as a basic social
institution,26 marriage should not be permitted to be dissolved at the whim of the parties. In
interpreting and applying Article 41, this is the underlying rationale –to uphold the sanctity of
marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we stressed:

[The]protection of the basic social institutions of marriage and the family in the preservation of which
the State has the strongest interest; the public policy here involved is of the most fundamental kind.
In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the
application of a stringent standard for its issuance) is also for the present spouse's benefit. It is
intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court's
declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present
spouse's good faith in contracting a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated.28 Thus, for purposes of remarriage, it is necessary to strictly
comply with the stringent standard and have the absent spouse judicially declared presumptively
dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We need only
to cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard necessitates a denial. To rectify
this situation, lower courts are now expressly put on notice of the strict standard this Court requires
in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of
Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby
REVERSED and SET ASIDE.

SO ORDERED.

G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escaño.

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 Escaño, 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 Escaño 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 Escaño, 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 Escaño 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 Escaño; 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 Escaño, 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 Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño 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 Escaño, 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 Escaño 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 Escaño 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 Escaño'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 Escaño, 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 Escaño 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 Escaño 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 Escaño
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 Escaño reserving to the parties the right
to discuss which are paraphernal and which are conjugal properties. So ordered.

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

G.R. No. L-1780 August 31, 1948

Petition for the presumption of death of Nicolai Szatraw. CONSUELO SORS, petitioner-
appellant.

J. Rodriguez Serra for appellant.

PADILLA, J.:

Pleading under oath that she is the lawful wife of Nicolas Szatraw, a Polish citizen, to whom she was
married in Manila on November, 1936, whom she bore a child named Alexis Szatraw born on 8
September 1937, with whom she had lived from the time they were married until February, 1940,
when her husband, on the pretext that he would call on some friends, departed from the conjugal
abode carrying the child along with him and never returned, about whose whereabouts she made
inquiries from among her husband's friends and countrymen and learned that her husband and child
had left for Shanghai, where, according, however, to information obtained from Polish citizens who
had arrived from that place, he and the child had not been seen and could not be found; that all her
efforts to know the whereabouts of her husband and child were in vain; and that, because of her
husband's absence for more than seven years during which she has not heard any news from him
and about her child, she believes that he is dead, Consuelo Sors prays that her husband be
declared dead and that her parental authority over her child, should the latter be alive and later on
appear, be preserved.

The foregoing facts pleaded in the petition were proved. The evidence further shows that she and
her husband did not acquire any property during their marriage and that his life was not insured.

Upon the foregoing evidence the trial court dismissed the petition on the ground that it is not for the
settlement of the estate of the absentee, and because the rule of evidence establishing the
presumption that a person unheard from in seven years is dead, does not create a right upon which
a judicial pronouncement of a decree may be predicated. The petitioner has appealed.

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,
either in an action or in a special proceeding, which is tried or heard by, and submitted for decision
to, a competent court. Independently of such an action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the subject of an action or special proceeding. In this
case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her
absent husband. Neither is there a prayer 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 already 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 between the parties, or determine finally
the right or status of a party or establish finally a particular fact, out of which certain rights and
obligations arise or may arise; and once such controversy is decided by a final judgement, or such
right or status determined, or such particular fact established, by a final decree, then the judgement
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 stage 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 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 bind 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 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.

The order appealed from is affirmed. No pronouncement as to costs is made, because no adverse
party appeared in this Court and in the court below.

Paras, Actg. C.J., Feria, Pablo, Perfecto, Bengzon, Briones, and Tuason, 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
Decision1 of the Court of Appeals2 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 Church4 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 relied5 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 Appeals6 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,7Justice
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 vis-a-
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.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts
of the case. In Leouel Santos v. Court of Appealsand Julia Rosario-Bedia Santos, G.R. No. 112019,
4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was psychological
incapacity on the part of the wife to discharge the duties of a wife in a valid marriage. The facts of
the present case, after an indepth study, do not support a similar conclusion. Obviously, each case
must be judged, not on the basis of a priori assumptions, predilections or generalizations but
according to its own facts. In the field of psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take
pains in examining the actual millieu and the appellate court must, as much as possible, avoid
substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "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.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "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 (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
exclude mental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:
 (7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential nature
of marriage or was psychologically or mentally incapacitated to discharge the
essential marital obligations, even if such lack of incapacity is made manifest after
the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in
the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental faculties
vitiating consent, which is not the idea . . . but lack of appreciation of one's marital obligation." There
being a defect in consent, "it is clear that it should be a ground for voidable marriage because there
is the appearance of consent and it is capable of convalidation for the simple reason that there are
lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations attendant to
marriage."1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention
of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase."
He said that the Code of Canon Law would rather express it as "psychological or mental incapacity
to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be psychologically
impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of Art.
36 is: "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."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of how
they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet the
possibility that one may be cured after the psychological incapacity becomes manifest after the
marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

 3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of the
time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage:
"3. (those) who, because of causes of a psychological nature, are unable to assume the essential
obligations of marriage" provided the model for what is now Art. 36 of the Family Code: "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.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment process
which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws.
Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the
Family Code — and classified the same as a ground for declaring marriages void ab initio or totally
in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly
for psychological incapacity, in effect recognized the same indirectly from a combination of three old
canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid
consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements required
in marriage; and Canon #1087 (the force and fear category) required that internal and external
freedom be present in order for consent to be valid. This line of interpretation produced two distinct
but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack
of due discretion means that the person did not have the ability to give valid consent at the time of
the weddingand therefore the union is invalid. Lack of due competence means that the person
was incapable of carrying out the obligations of the promise he or she made during the wedding
ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the
first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after
1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the
ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions about
a party's mental at the time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the addition
of new grounds for annulment, but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the expertise to provide the all-
important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases that
a person who could intellectually understand the concept of marriage could necessarily give valid
consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial consent.2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses
from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult personality; as meaning the
capacity of the spouses to give themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a
self-giving love; and that the spouses must have the capacity for interpersonal relationship because
marriage is more than just a physical reality but involves a true intertwining of personalities. The
fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of
this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to
impair the relationship and consequently, the ability to fulfill the essential marital obligations. The
marital capacity of one spouse is not considered in isolation but in reference to the fundamental
relationship to the other spouse.3
Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to children
and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an
ability to cope with the ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even

with the best intentions of the parties. Among the psychic factors possibly giving rise
to his or her inability to fulfill marital obligations are the following: (1) antisocial
personality with its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the
inadequate personality where personal responses consistently fallshort of reasonable
expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he
or she has a case for an annulment on any other terms. A situation that does not fit
into any of the more traditional categories often fits very easily into the psychological
category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their responsibilities
an obligations as promised (lack of due competence). An advantage to using the
ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital
responsibilities as promisedat the time the marriage was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity
on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife
never had coitus with her, a fact he did not deny but he alleged that it was due to the physical
disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end of
marriage," the wife brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:
 If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped
in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I
find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus —

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.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the
civil courts, may be given persuasive effect since the provision was taken from
Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those)
—

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;
 3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the interpretation
and construction of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he 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. . . 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 of the spouse to have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which considers children conceived prior
to the judicial declaration of nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of
a party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant
to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the disorder, indicia of
psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article
36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;
Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it, to
be a alternative to divorce; however, the fact still remains that the language of the law has failed to
carry out, even if true, any such intendment. It might have indeed turned out for the better, if it were
otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific
issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding them.
It is quite clear to me that the constitutional mandate on marriage and the family has not been meant
to be simply directory in character, nor for mere expediency or convenience, but one that demands a
meaningful, not half-hearted, respect.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts
of the case. In Leouel Santos v. Court of Appealsand Julia Rosario-Bedia Santos, G.R. No. 112019,
4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was psychological
incapacity on the part of the wife to discharge the duties of a wife in a valid marriage. The facts of
the present case, after an indepth study, do not support a similar conclusion. Obviously, each case
must be judged, not on the basis of a priori assumptions, predilections or generalizations but
according to its own facts. In the field of psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take
pains in examining the actual millieu and the appellate court must, as much as possible, avoid
substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "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.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "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 (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
exclude mental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential nature
of marriage or was psychologically or mentally incapacitated to discharge the
essential marital obligations, even if such lack of incapacity is made manifest after
the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in
the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental faculties
vitiating consent, which is not the idea . . . but lack of appreciation of one's marital obligation." There
being a defect in consent, "it is clear that it should be a ground for voidable marriage because there
is the appearance of consent and it is capable of convalidation for the simple reason that there are
lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations attendant to
marriage."1
My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention
of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase."
He said that the Code of Canon Law would rather express it as "psychological or mental incapacity
to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be psychologically
impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of Art.
36 is: "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."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of how
they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet the
possibility that one may be cured after the psychological incapacity becomes manifest after the
marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of the
time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage:
"3. (those) who, because of causes of a psychological nature, are unable to assume the essential
obligations of marriage" provided the model for what is now Art. 36 of the Family Code: "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.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment process
which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws.
Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the
Family Code — and classified the same as a ground for declaring marriages void ab initio or totally
in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly
for psychological incapacity, in effect recognized the same indirectly from a combination of three old
canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid
consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements required
in marriage; and Canon #1087 (the force and fear category) required that internal and external
freedom be present in order for consent to be valid. This line of interpretation produced two distinct
but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack
of due discretion means that the person did not have the ability to give valid consent at the time of
the weddingand therefore the union is invalid. Lack of due competence means that the person
was incapable of carrying out the obligations of the promise he or she made during the wedding
ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the
first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after
1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the
ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions about
a party's mental at the time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not amount to the addition
of new grounds for annulment, but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the expertise to provide the all-
important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases that
a person who could intellectually understand the concept of marriage could necessarily give valid
consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial consent.2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses
from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult personality; as meaning the
capacity of the spouses to give themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a
self-giving love; and that the spouses must have the capacity for interpersonal relationship because
marriage is more than just a physical reality but involves a true intertwining of personalities. The
fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of
this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to
impair the relationship and consequently, the ability to fulfill the essential marital obligations. The
marital capacity of one spouse is not considered in isolation but in reference to the fundamental
relationship to the other spouse.3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to children
and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an
ability to cope with the ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even

with the best intentions of the parties. Among the psychic factors possibly giving rise
to his or her inability to fulfill marital obligations are the following: (1) antisocial
personality with its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the
inadequate personality where personal responses consistently fallshort of reasonable
expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he
or she has a case for an annulment on any other terms. A situation that does not fit
 into any of the more traditional categories often fits very easily into the psychological
category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their responsibilities
an obligations as promised (lack of due competence). An advantage to using the
ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital
responsibilities as promisedat the time the marriage was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity
on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife
never had coitus with her, a fact he did not deny but he alleged that it was due to the physical
disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end of
marriage," the wife brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped
in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I
find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus —

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.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the
civil courts, may be given persuasive effect since the provision was taken from
Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those)
—

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the interpretation
and construction of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he 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. . . 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 of the spouse to have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which considers children conceived prior
to the judicial declaration of nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of
a party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant
to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the disorder, indicia of
psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article
36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it, to
be a alternative to divorce; however, the fact still remains that the language of the law has failed to
carry out, even if true, any such intendment. It might have indeed turned out for the better, if it were
otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.

Section 12, Article II:

 Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific
issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding them.
It is quite clear to me that the constitutional mandate on marriage and the family has not been meant
to be simply directory in character, nor for mere expediency or convenience, but one that demands a
meaningful, not half-hearted, respect.

[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 as well [1]

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 dated 21 January 1997 of the
[2]

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. On 9 May 1995, respondent Tadeo filed a Motion to Withdraw Petition
[3]

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-95-23445) 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. A complaint states a cause of action
[5]

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. The petition alleged that respondent Tadeo and petitioner
[7]

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. Ultimate[9]

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 on the rulings in Santos v. Court of

[11]

Appeals as well as in Republic v. Court of Appeals and

[12]

Molina. Santos gave life to the phrase psychological incapacity, a novel

[13]

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). Specifically, Section 2, paragraph (d) of the new Rules
[15]

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. The obvious effect of the new Rules providing that expert opinion
[16]

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, the Court held:
[17]

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. Given the hypothetically admitted facts in the second petition, the
[18]

trial court could render judgment over the case.

Forum Shopping

Similarly untenable is petitioner Dianas contention that the second petitions

certificate of non-forum shopping which does not mention the filing of the first
petition and its dismissal without prejudice violates Circular No. 04-
94. Petitioner Diana refers to this portion of Circular No. 04-94-
[19]

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, the Court squarely addressed the issue of

[22]

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, now Section 5, Rule 7 of the 1997 Rules of Civil
[23]

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. In rendering this Decision, this Court is not prejudging
[25]

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 decision dated August 20, 2001 of
[1]

the Court of Appeals affirming the decision dated August 28, 1997 of the
[2] [3]

Regional Trial Court of Rizal, Branch 72, declaring as null and void the marriage
contracted between herein respondent Lolita M. Quintero-Hamano 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 Molina and Santos vs. Court of
[8]

Appeals. In those cases, the spouses were Filipinos while this case involved
[9]

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 quoand 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. Thus, any doubt should be resolved in favor
[11]

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. (emphasis supplied)
[13]

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. The foregoing guidelines
[14]

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. There was no showing that the case at bar was not just an
[16]

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. There was no proof
[17]

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, this Court declared that marriage is an inviolable
[19]

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.
Vitug, (Chairman and Acting Chief Justice), Sandoval-
Gutierrez, and Carpio-Morales, JJ., concur.

[G.R. No. 170022, January 09, 2013]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. CESAR ENCELAN, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 filed by petitioner Republic of the Philippines challenging the
ςrνl1

October 7, 2005 amended decision2 of the Court of Appeals (CA) that reconsidered its March 22, 2004
ςrνl1

decision3 (original decision) in CA-G.R. CV No. 75583. In its original decision, the CA set aside the June 5,
ςrνl1

2002 decision4 of the Regional Trial Court (RTC) of Manila, Branch 47, in Civil Case No. 95-74257, which
ςrνl1

The Factual Antecedents

On August 25, 1979, Cesar married Lolita5 and the union bore two children, Maricar and Manny.6 To
ςrνl1 ςrνl1

support his family, Cesar went to work in Saudi Arabia on May 15, 1984. On June 12, 1986, Cesar, while still
in Saudi Arabia, learned that Lolita had been having an illicit affair with Alvin Perez. Sometime in
1991,7 Lolita allegedly left the conjugal home with her children and lived with Alvin. Since then, Cesar and
ςrνl1

Lolita had been separated. On June 16, 1995, Cesar filed with the RTC a petition against Lolita for the
declaration of the nullity of his marriage based on Lolita's psychological incapacity.8
ςrνl1

Lolita denied that she had an affair with Alvin; she contended that Alvin used to be an associate in her
promotions business. She insisted that she is not psychologically incapacitated and that she left their home
because of irreconcilable differences with her mother-in-law.9 ςrνl1

At the trial, Cesar affirmed his allegations of Lolita's infidelity and subsequent abandonment of the family
home.10 He testified that he continued to provide financial support for Lolita and their children even after he
ςrνl1

learned of her illicit affair with Alvin.11 ςrνl1

Cesar presented the psychological evaluation report12 on Lolita prepared by Dr. Fareda Fatima Flores of the ςrνl1

National Center for Mental Health. Dr. Flores found that Lolita was "not suffering from any form of major
psychiatric illness[,]”13 but had been "unable to provide the expectations expected of her for a good and
ςrνl1

lasting marital relationship”;14 her "transferring from one job to the other depicts some interpersonal
ςrνl1

problems with co-workers as well as her impatience in attaining her ambitions”;15 and "her refusal to go ςrνl1

with her husband abroad signifies her reluctance to work out a good marital and family relationship.”16 ςrνl1

The RTC Ruling

In its June 5, 2002 decision,17 the RTC declared Cesar's marriage to Lolita void, finding sufficient basis to
ςrνl1

declare Lolita psychologically incapacitated to comply with the essential marital obligations. cralawlibrary

The petitioner, through the Office of the Solicitor General (OSG), appealed to the CA. cralawlibrary

The CA Ruling

The CA originally18 set aside the RTC's verdict, finding that Lolita's abandonment of the conjugal dwelling
ςrνl1

and infidelity were not serious cases of personality disorder/psychological illness. Lolita merely refused to
comply with her marital obligations which she was capable of doing. The CA significantly observed that
infidelity is only a ground for legal separation, not for the declaration of the nullity of a marriage. cralawlibrary

Cesar sought reconsideration19 of the CA's decision and, in due course, attained his objective. The CA set
ςrνl1

aside its original decision and entered another, which affirmed the RTC's decision. In its amended
decision,20 the CA found two circumstances indicative of Lolita's serious psychological incapacity that
resulted in her gross infidelity: (1) Lolita's unwarranted refusal to perform her marital obligations to Cesar;
and (2) Lolita's willful and deliberate act of abandoning the conjugal dwelling. cralawlibrary

The OSG then filed the present petition. cralawlibrary

The Petition

The OSG argues that Dr. Flores' psychological evaluation report did not disclose that Lolita had been
suffering from a psychological illness nor did it establish its juridical antecedence, gravity and incurability;
infidelity and abandonment do not constitute psychological incapacity, but are merely grounds for legal
separation. cralawlibrary

The Case for the Respondent

Cesar submits that Lolita's infidelity and refusal to perform her marital obligations established her grave and
incurable psychological incapacity. cralawlibrary

The Issue

The case presents to us the legal issue of whether there exists sufficient basis to nullify Cesar's marriage to
Lolita on the ground of psychological incapacity. cralawlibrary

The Court's Ruling

We grant the petition. No sufficient basis exists to annul Cesar's marriage to Lolita on the ground
of psychological incapacity.

Applicable Law and Jurisprudence

on Psychological Incapacity
Article 36 of the Family Code governs psychological incapacity as a ground for declaration of nullity of
marriage. It provides that "[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 interpreting this provision, we have repeatedly stressed that psychological incapacity contemplates
"downright incapacity or inability to take cognizance of and to assume the basic marital
obligations”;21 not merely the refusal, neglect or difficulty, much less ill will, on the part of the errant
ςrνl1

spouse.22 The plaintiff bears the burden of proving the juridical antecedence (i.e., the existence at the time
ςrνl1

of the celebration of marriage), gravity and incurability of the condition of the errant spouse.23 ςrνl1

Cesar failed to prove Lolita's

psychological incapacity

In this case, Cesar's testimony failed to prove Lolita's alleged psychological incapacity. Cesar testified on the
dates when he learned of Lolita's alleged affair and her subsequent abandonment of their home,24 as well as ςrνl1

his continued financial support to her and their children even after he learned of the affair,25 but he merely ςrνl1

mentioned in passing Lolita's alleged affair with Alvin and her abandonment of the conjugal dwelling. cralawlibrary

In any event, sexual infidelity and abandonment of the conjugal dwelling, even if true, do not necessarily
constitute psychological incapacity; these are simply grounds for legal separation.26 To constitute ςrνl1

psychological incapacity, it must be shown that the unfaithfulness and abandonment are manifestations of a
disordered personality that completely prevented the erring spouse from discharging the essential marital
obligations.27 No evidence on record exists to support Cesar's allegation that Lolita's infidelity and
ςrνl1

abandonment were manifestations of any psychological illness. cralawlibrary

Cesar mistakenly relied on Dr. Flores' psychological evaluation report on Lolita to prove her alleged
psychological incapacity. The psychological evaluation, in fact, established that Lolita did not suffer from any
major psychiatric illness.28 Dr. Flores' observation on Lolita's interpersonal problems with co-workers,29 to
ςrνl1 ςrνl1

our mind, does not suffice as a consideration for the conclusion that she was � at the time of her
marriage � psychologically incapacitated to enter into a marital union with Cesar. Aside from the time
element involved, a wife's psychological fitness as a spouse cannot simply be equated with her
professional/work relationship; workplace obligations and responsibilities are poles apart from their marital
counterparts. While both spring from human relationship, their relatedness and relevance to one another
should be fully established for them to be compared or to serve as measures of comparison with one
another. To be sure, the evaluation report Dr. Flores prepared and submitted cannot serve this purpose. Dr.
Flores' further belief that Lolita's refusal to go with Cesar abroad signified a reluctance to work out a good
marital relationship30 is a mere generalization unsupported by facts and is, in fact, a rash conclusion that
ςrνl1

this Court cannot support. cralawlibrary

In sum, we find that Cesar failed to prove the existence of Lolita's psychological incapacity; thus, the CA
committed a reversible error when it reconsidered its original decision. cralawlibrary

Once again, we stress that marriage is an inviolable social institution protected by the State. Any doubt31
ςrνl1

should be resolved in favor of its existence its existence and continuation and against its dissolution and
nullity.32 It cannot be dissolved at the whim of the parties nor by transgressions made by one party to the
ςrνl1

other during the marriage. cralawlibrary

WHEREFORE, we GRANT the petition and SET ASIDE the October 7, 2005 amended decision of the Court
of Appeals in CA-G.R. CV No. 75583. Accordingly, we DISMISS respondent Cesar Encelan's petition for
declaration of nullity of his marriage to Lolita Castillo-Encelan. cralawlibrary

Costs against the respondent. cralawlibrary

SO ORDERED.
 FIRST DIVISION

[ G.R. No. 201988, October 11, 2017 ]

MARIA VICTORIA SOCORRO LONTOC-CRUZ, PETITIONER, VS.

NILO SANTOS CRUZ, RESPONDENT.

DECISION
DEL CASTILLO, J.:
The most challenging part of being in a difficult marriage is to thrive in one.
In the case of petitioner Maria Victoria Socorro Lontoc-Cruz (Marivi) and
respondent Nilo Santos Cruz (Nilo), their marriage withered as this was
beset with problems such as the lack of quality time, recriminations,
disillusionment, loss of passion, and infidelity. The estranged spouses
considered their union as non-functional, attributing the failure of their
marriage to their respective personality disorders that repelled each other.

This Petition for Review on Certiorari[1] challenges the November 22, 2011
Decision[2] and May 29, 2012 Resolution[3] of the Court of Appeals (CA) in
CA-G.R. CV No. 93736 that affirmed the Decision[4] of the Regional Trial
Court (RTC), Branch 207, Muntinlupa City in Civil Case No. 05-095 which
refused to declare the marriage void ab initio under Article 36 of the Family
Code.

Factual Antecedents

Twenty-two-year-old Marivi met 28-year old Nilo sometime in March 1986.

They became steady in August of the same year. Nilo, whose job was then in
Hong Kong, prodded Marivi to marry him so she could join him there
soonest. Marivi agreed. The couple married in a civil ceremony[5] on
October 21, 1986 followed by a church wedding[6] on February 8, 1987. The
marriage produced two sons: Antonio Manuel, born on April 25, 1988, and
Jose Nilo, born on September 9, 1992.

On July 7, 2005, Marivi filed with the RTC of Muntinlupa City a petition for
declaration of nullity of marriage[7] based on psychological incapacity. She
averred that it had been medically ascertained that Nilo was suffering from
"inadequate personality disorder related to masculine strivings associated
with unresolved oedipal complex,"[8] while she herself was found to be
suffering from a "personality disorder of the mixed type, [h]istrionic,
[n]arcissistic with immaturity x x x."[9]

To show that Nilo failed to provide her with the necessary emotional,
psychological, and physical support, Marivi cited the following:

1. His infidelity and his non-commitment to the marriage as he

continued to act like a bachelor;

2. The lack of 'oneness' in the marriage as Nilo would make decisions

(on financial matters) without consulting or considering her
suggestions; treating her as a housemate or a "mayordoma;" keeping
from her his whereabouts, when he would come home or how much
his income was;

3. The lack of sexual contact for more than a decade as Nilo made
excuses;

4. Putting up a facade that he is a caring, concerned, and loving

husband, especially to his bosses; and

5. Preference towards the company of his peers/friends.[10]

In his Answer,[11] Nilo claimed that he was madly in love with Marivi; that at
the start of their relationship, both he and Marivi would exhibit negative
personality traits which they overlooked; that he believed that both he and
Marivi were suffering from psychological incapacity; and that he was not
singularly responsible for the breakdown of their marriage. He stressed that
Marivi also contributed to the deterioration of their union, to wit:

1. Marivi would demand that he behave in ways he was not accustomed

to or inconsistent with his career position;
 2. Marivi was jealous of his friends; and would often make hasty
conclusions that he was having an affair with other women;

3. Marivi would exhibit volatile temperament if things did not go her

way; would not admit mistakes, and blame others instead;

4. Marivi would make decisions impulsively, such as changing an item

she gets tired of, or demanding that Nilo change a motor vehicle
simply because she did not like it; and

5. She lacked respect for Nilo, and would speak to him degradingly, and
even accuse him of being gay or a homosexual.[12]

On October 11, 2006, the trial court rendered a Partial

Decision[13] approving the parties' Compromise Agreement[14] pertaining to
custody, support, and dissolution of the properties. Trial on the issue of the
nullity of marriage on the ground of psychological incapacity ensued.

Marivi's Version

Marivi narrated that when they were still going steady, Nilo would only
spend Saturdays and Sundays with her and devote the weekdays to partying
with his friends; that even after their engagement, Nilo would still meet
other women and accept invitations to beauty pageants and
cocktails;[15] that Nilo was not the type who would kiss passionately; that
Nilo would not engage in foreplay during sex, but wished only to satisfy
himself; that Nilo would engage in anal sex and would only stop when she
complained that it was painful; that Nilo would thereafter sleep, leaving her
feeling "used," and that Nilo was impulsive, daring, and adventurous.[16]

She also claimed that Nilo would habitually come home late; that Friday
nights were Nilo's boys' night out; that unless she would ask him to take her
out on a date, Nilo would not do so; and that Nilo would call her a "nagger"
even if she was merely asking him to come home early.[17]

Marivi further narrated that Nilo would engage in extramarital affairs; that
a few months into their marriage, Nilo had an affair with an unmarried
female officemate;[18] that Nilo ended the affair only after she (Marivi)
threatened to tell his employer/supervisor;[19] that Nilo had another affair a
few weeks after the birth of their second son; that when confronted with his
womanizing and made to choose between her and the children or the other
women, Nilo replied that he was "confused,"[20] which prompted her to
leave and stay in Cebu with her parents; and that she heard from her
friends that while she was in Cebu, Nilo was living a bachelor's life.[21]

Marivi added that she eventually reconciled with Nilo but despite the
reconciliation, Nilo never really changed, and that he remained indifferent,
insensitive, and unappreciative. According to Marivi, she would instead call
up her parents and sisters to talk about their family problems;[22] that while
he (Nilo) told people that he was proud of her, he never gave her the
emotional, psychological, and physical support she needed.[23] She felt like
she was no more than a mayordoma to him, and that they were just
"housemates." Nilo would come home late on weekdays and preferred to go
out with his friends. Their quarrels were frequent and their conversations
were superficial; Nilo would rather talk about himself, instead of asking
Marivi about her day or about their children. He was controlling and
domineering,[24] and refused to consider her suggestions; he would not
want his money mingled with her (Marivi's) money.[25] Nilo would shell out
money when he wanted to buy things, but would make excuses when it
came to Marivi's suggestion for a family vacation.[26] Marivi also claimed
that Nilo had no sense of companionship with their children; and that Nilo
even told their son that their brand new house was everything to him.[27]

Marivi was moreover bothered by Nilo's effeminate ways; he was vain and
would have weekly "beauty" treatments.[28] Furthermore, they no longer
had sex after the birth of their second son. While they tried to have sex
twice, Nilo failed to have an erection. After that, Nilo would refuse to have
sex with her which made her (Marivi) question his sexual orientation, so
much so that Nilo physically hurt her when she questioned his virility.[29]

Marivi's father, Manuel, likewise stated that Marivi would call them up for
help because Nilo had hurt her during the couple's quarrel; that their
marriage was not harmonious due to Marivi's youth and her unfamiliarity
with Nilo's personality and family values. He considered Nilo only as a
provider, not as a husband and a good father to his sons.[30]
Marivi's younger sister, Margarita Ledesma (Margarita), who lived for four
years with Nilo and Marivi, claimed to have witnessed how lonely Marivi
was. She alleged that Nilo was absent when Marivi gave birth to their
second son; that Nilo was short-tempered when driving; and that the
couple would often fight because Nilo would always come home late or
because Marivi suspected Nilo of infidelity. Margarita believed that Nilo did
not really want to save the marriage, although he told her that he loves
Marivi and the children.[31]

Nilo's Version

Nilo acknowledged his contribution to the breakdown of the marriage

because his job required him to come home late, his inability to sexually
perform adequately, his failure to be the "ideal husband,"[32] and because he
had had extramarital affairs in the years 1992, 2002, and 2006.[33] At the
same time, Nilo insisted that Marivi also contributed to the collapse of their
union.

According to Nilo, Marivi would always want to know his companions and
whereabouts; would demand information about his female acquaintances;
and would even call up his workplace to ask where he was. Moreover, her
conceit and her "prima donna" attitude embarrassed him. Marivi would
order him to act in accordance with their stature in life, and would demand
that he instruct his office staff to accord her special treatment as Hewlett
Packard's "first lady" during the time that he was Hewlett Packard's
President. Marivi would also instruct their housemaids to call him
"señorito;" and she would make a "big deal" out of her being a "mestiza,"
and would think of herself a "trophy wife."[34]

Nilo claimed that Marivi was "unappreciative" of him, had a misdirected

sense of self-entitlement, and would complain if she did not get her own
way, as she was used to, she being her father's favorite daughter; Marivi did
not even care about discussing family finances with him as long as she got
what she wanted. She also had a violent temper and would hurl things at
him during their fights; that she would blame him for everything, and
would keep on reciting his past mistakes. Marivi did not understand the
demands of his job, and unfairly compared his work to her father's job, the
operation of which was limited to a single area, a compound in a mine site
in Cebu. He explained that the multinational companies he then worked for
required him to work beyond the normal office hours because he has to
meet "sales quotas in millions of dollars," entertain people from different
headquarters, and meet with different clients from areas far from his
residence.[35]

Worse, Nilo was turned off by Marivi's act of broadcasting to her whole clan
his inadequacies during their intimate sexual relations, which began after
he witnessed Marivi giving birth to their first child. When he confided to
Marivi about this, she instead accused him of having another affair. Since
then, he did not feel any sexual excitement and attraction toward her when
they were together. Instead of discussing the problem with him candidly,
she accused him of being gay. Nilo stated that the last time they had sex was
in 1997 or in 1998.[36]

The Clinical Findings

In support of her claim that she and Nilo were suffering from psychological
incapacity, Marivi presented Dr. Cecilia Villegas (Dr. Villegas), a
psychiatrist, and Dr. Ruben Encarnacion (Dr. Encarnacion), a clinical
psychologist.

Dr. Villegas diagnosed Nilo to have "inadequate personality disorder

related to masculine strivings associated with unresolved oedipal
complex,"[37] while she diagnosed Marivi to have "personality disorder of
the mixed type, [h]istrionic, [n]arcissistic, with immaturity x x x."[38]

In the March 21, 2005 Psychiatric Report,[39] Dr. Villegas stated:

The root cause of the above clinical conditions on the part of Marivi Cruz,
were the overindulgence and over attention of her parents, in a prolonged
manner, carried over to adult adjustments. On the part of Nilo Cruz, his
negative identification and resentments towards his father and close
attachments to his mother, continued by his long-time maid, to the point of
an oedipal situation led to his inadequacy, along masculine strivings, with
difficult assertions of his authority and power.

The above clinical conditions existed prior [to] marriage but became
manifest only after the celebration due to marital stresses and demands.
Both are considered as permanent in nature, because they started early in
their developmental stage, and therefore became so deeply engrained into
their personality structures. Both are considered grave in degree, because
they hampered, interfered and disrupted their normal functioning related
to heterosexual adjustments.[40]
According to Dr. Villegas, both parties could not tolerate each others'
weaknesses and that the incapacities of the parties are grave because they
preferred to satisfy their own needs rather than to give in to the other's
needs.[41]

She claimed that Nilo's lack of a father figure weakened his masculinity. He
cross-identified himself with his mother because his father, a disciplinarian
and the thrifty one, was often absent because of his military service. While
he was still a teenager, his mother migrated to Canada and their long-time
maid acted as his surrogate mother. Nilo sought from his wife his mother's
nurturing qualities, but he felt hostility when Marivi failed to meet his ego
ideal. His aggression was in the form of passivity, punishing his wife by not
sexually performing.[42]

Dr. Villegas noted that Nilo would put on a facade, a compensatory

mechanism according to social norms. While he was not exactly a
homosexual. he covered up his weak masculine traits by being a "playboy."
Nilo could only comply with the financial obligation of marital life, but not
the psychological and emotional parts of it.[43] Nilo likewise was an
inadequate father figure to his own two sons, especially the younger, who
has already manifested strong feminine traits.[44]

Marivi, on the other hand, expected that her interactions with the world
would be like that of her own close-knit family, a perception attributable to
her parents' prolonged gratification of her dependency needs. Her father
was a dedicated, devoted, and responsible family man who regularly came
home to spend time with them, while her mother was a good housewife,
who always found time to personally attend to their needs. Dr. Villegas
described Marivi as one with strong mood fluctuations, emotionally
immature, with low self-esteem, has difficulty neutralizing the outbreak of
negativity in her behavior, is suggestible, egocentric, and impelled by a
desire to "extort" from others. To Dr. Villegas, the couple's respective
personality disorders were mutually repelling, their brain waves not being
in sync because what Marivi expected from Nilo happened to be Nilo's
weakest point.[45]

Dr. Encarnacion supported Dr. Villegas' diagnosis. On the basis of Nilo's

five-to-six sessions and Marivi's eight bi-weekly psychotherapy sessions
with him, Dr. Encarnacion concluded that there was no chance of a
successful marriage in a dysfunctional union when there is double
psychological incapacity. He categorically stated that Nilo was incapable of
being a good husband and a good father. Nilo lacked an individual coherent
identity and instead went by the standards of general society, which is
driven by the desire to gain material wealth, power, and control. Nilo did
not like close relationships and was incapable of forming some; his social
anxiety, associated with paranoid fears, was manifested by excessive vanity.
Nilo projected an image of a wealthy, successful, handsome man
surrounded by women, in none of whom, however, he was interested in a
long-term sexual relationship; he saw himself as a performer-provider and
was disinterested in spending quality time with his family, in carrying on
conversations with members of his family, insensitive, intolerant, and
demanding.[46]

Dr. Encarnacion attributed respondent's psychological disorder to his

childhood, in which he did not have fond memories of tender moments and
vacation times with his family. Nilo grew up very close to his mother who
always listened to his complaints and with whom he sympathized, hence his
unresolved oedipal issues; even as he patterned his masculinity strivings
after his stingy father, the family provider, but whom he nonetheless
described as "unappreciative, undemonstrative, and quite materialistic." At
the age of 18, when his parents migrated to Canada and left him in the
Philippines, he then lost his role models, incapacitating him from creating
his own identity. Thus, when he began working at the age of 21, he imbibed
the values of his workplace, where feelings and emotional discussions were
absent, factors that nonetheless somehow worked to his advantage in his
job.[47] Dr. Encarnacion opined that Nilo's incapacity was his "rigidity,"
which drove him into imposing his family upbringing on his own family,
instead of adjusting to the modem family setup, i.e., that the modem father
should take on new roles and be part of family activities where his family
needs him to be, e.g. taking the children to the pediatrician or to the park,
camping with the family, or being with them in church, instead of strictly
confining himself to being a provider.[48]

As for Marivi, Dr. Encarnacion found that she exhibited "Histrionic

Personality Behaviors and Features" as manifested by her impressionistic
speech, her exaggerated expression of emotions, and her suggestibility. He
stated that Marivi's "inflexibility" consisted in her expecting a high
standard of faithfulness from all men as exemplified by her dad, who was
also very devoted to her mother. However, because dissatisfied and
frustrated by her actual marital situation, she sought attention, externalized
blame, displayed anger, mistrust, resentment, and self-indulgence.[49]

Ruling of the Regional Trial Court

In its October 13, 2008 Decision,[50] the RTC denied the Petition.

The RTC took a dim view of the expert witnesses' attribution of a double
psychological incapacity to Marivi's nature of being a "father figure
woman," and to Nilo's "oedipal complex." The court noted that Marivi
already disengaged herself from her father as her standard of an ideal
husband when she married Nilo, despite the latter's limitations and his
then being already very focused on his job. Marivi's need for assurance that
she is loved, vis-a-vis her looking up to her father as her standard, was not
by itself sufficient to declare her psychologically incapacitated.

As for Nilo, the RTC found no concrete evidence of "oedipal complex;" the
RTC held that prioritizing his work over the emotional needs of his family
was not reflective of his psychological incapacity because what he did was
still for his family's benefit. Neither was Nilo's lack of sexual interest in
Marivi a case of psychological incapacity, for this was a result of his being
turned off by Marivi's unabated naggings and her revelations to her family
of his sexual inadequacies.
From the RTC's verdict, petitioner appealed to the CA.

Ruling of the Court of Appeals

In its November 22, 2011 Decision,[51] the CA united with the RTC in
rejecting the alleged. existence of psychological incapacity pointed out by
Dr. Villegas and by Dr. Encarnacion.

The CA found that Dr. Villegas and Dr. Encarnacion failed to paint a clear
picture of the supposed gravity or seriousness of Nilo's psychological
incapacity, and that it was unconvinced of the doctors' conclusion that Nilo
had a deep propensity to cover up for his serious inadequacies.

It ruled that Marivi failed to prove that Nilo's failure to comply with his
sexual obligation was due to some psychological condition or makeup, as
this could very well be explained by the stress brought about by Marivi's
negative attitude toward Nilo, who was turned off by her act of revealing to
her clan their bedroom secrets instead of privately resolving the problem
with him. Moreover, the CA said it is a non sequitur, that just because he
could not sexually perform according to Marivi's standard, he should thus
be labelled a gay or homosexual. It appears that Nilo has "selective"
impotency, for while he could not have an erection for Marivi, he
nevertheless had had extramarital affairs. Neither did the CA see anything
wrong with Nilo's "put-on facade" of a happy marriage to protect the
family's privacy.

The CA did not even consider Marivi's alleged histrionic traits as ref1ected
in her behavior, e.g., her persistent demand as to Nilo's whereabouts, her
constant naggings, her attention-seeking acts, grave or serious enough to
qualify as psychological incapacity. The CA ruled that it was the couple's
irreconcilable differences that marred their marriage; that the negative acts
or actions of one spouse were neutralized or offset by the other's negative
acts or actions, and that these are "mere character flaws or bad habits that
the spouses developed over the years [which] can be modified or changed
depending on the desire of either spouse to do so."[52] The CA thereafter
disposed of the appeal, thus:

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial

Court in CV No. 05-095 denying the petition tor declaration of nullity of
marriage between appellant Maria Victoria Socorro Lontoc-Cruz and
appellee Nilo Santos Cruz for insufficiency of evidence is hereby
AFFIRMED. No costs.

SO ORDERED.[53]
Marivi moved for a reconsideration but it was denied in the CA's May 29,
2012 Resolution.[54]

Issue

At issue before us is whether the psychological conditions of the parties fall

under Article 36 of the Family Code to warrant the declaration of nullity of
marriage.

Our Ruling

We sustain the findings of both the RTC and the CA. Article 36 of the
Family Code states:

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.
We have laid down guidelines in interpreting and applying this provision.
In Republic v. De Gracia,[55] we reiterated the doctrine in Santos v. Court of
Appeals,[56] "that psychological incapacity must be characterized by: (a)
gravity (i.e., it must be grave and serious such that the party would be
incapable of carrying out the ordinary duties required in a marriage); (b)
juridical antecedence (i.e., it must be rooted in the history of the party
antedating the marriage, although the overt manifestations may emerge
only after the marriage); and (c) incurability (i.e., it must be incurable, or
even if it were otherwise, the cure would be beyond the means of the party
involved)." Also, in Republic v. Court of Appeals,[57] we reiterated the well-
settled guidelines in resolving petitions for declaration of nullity of
marriage, as embodied in Republic v. Court of Appeals,[58] viz.:

(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. x x x.

xxxx

(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. x x x.

xxxx

(3) The incapacity must be proven to be existing at 'the time of the

celebration' of the marriage. x x x.

xxxx

(4) Such incapacity must also be shown to be medically or clinically

permanent or incurable. x x x.

xxxx

(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. x x x.
xxxx

(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.

xxxx

(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. x x x.
Notably, "mere showing of 'irreconcilable differences' and 'conflicting
personalities' [as in the present case,] in no wise constitutes psychological
incapacity."[59] "Nor does failure of the parties to meet their responsibilities
and duties as married persons" amount to psychological incapacity.[60] We
further elucidated in Yambao v. Republic[61] that the psychological
condition should render the subject totally unaware or incognitive of the
basic marital obligations:

Article 36 contemplates incapacity or inability to take cognizance of and to

assume basic marital obligations and not merely difficulty, refusal,
or neglect in the performance of marital obligations or ill will. This
incapacity consists of the following: (a) a true inability to commit oneself to
the essentials of marriage; (b) this inability to commit oneself must refer to
the essential obligations of marriage: the conjugal act, the community of life
and love, the rendering of mutual help, the procreation and education of
offspring; and (c) the inability must be tantamount to a psychological
abnormality. 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 illness.[62]
In Marcos v. Marcos,[63] the actual medical examination of the one claimed
to have psychological incapacity is not a condition sine qua non, for what
matters is the totality of evidence to sustain a finding of such psychological
incapacity. While it behooves this Court to weigh the clinical findings of
psychology experts as part of the evidence, the court's hands are
nonetheless free to make its own independent factual findings. "It bears
repeating that the trial courts, as in all the other cases they try, must always
base their judgments not solely on the expert opinions presented by the
parties but on the totality of evidence adduced in the course of the
proceedings."[64]

With specific reference to the case before us, even granting that both parties
did suffer from personality disorders as evaluated by the expert witnesses,
we find that the conclusions reached by these expert witnesses do not
irresistibly point to the fact that the personality disorders which plague the
spouses antedated the marriage; that these personality disorders are indeed
grave or serious; or that these personality disorders are incurable or
permanent as to render the parties psychologically incapacitated to carry
out and carry on their marital duties. What can be inferred from the totality
of evidence, at most, is a case of incompatibility. For a personality disorder
to be declared clinically or medically incurable or permanent is one thing;
for a spouse to refuse or to be reluctant to perform his/her marital duties is
another.[65]

Indeed, we are loath to overturn the findings of the RTC and the CA. More
than that, too, the evidence on record do not square with the existence of
psychological incapacity as contemplated by law and jurisprudence. In the
case of Nilo, what brought about the breakdown of his relationship with
Marivi was not necessarily attributable to his so-called "psychological
disorder" but can be imputed to his work and marital stress, and his
ordinary human failings.

With regard to his failure to sexually perform "adequately," the same

appeared to be a case of "selective impotency," as he was turned off by
Marivi's disclosure of their bed secrets to her family. Furthermore, Nilo
testified that the sexual problem with Marivi did not crop up until the birth
of their second son, and that he felt that the blame was invariably and
unfairly laid on upon him, thus:

THE COURT:
The Court has just some questions with regard to the main issue.
During your direct testimony; Mr. Witness, you mentioned some of
your faults which [may be] the reason why the instant case was filed. x x
x one of those faults is no sex. When did that happen? x x x

If I recall it right, Your Honor; I [had] some challenge[s] immediately

A. after the first birth of my eldest son which I x x x shared with the
psychologist or psychiatrist who [had] examined me.

THE COURT:
But when you got married with your wife that was not a problem until
the birth of your last son?

A. Yes, your Honor.

ATTY. STA MARIA, JR.:

So it is attributable to the petitioner though you claim that it is your
Q.
fault, is that correct?
Because, your Honor, that kind of situation, I always get blamed, so for
the purpose of settling all these questions, when you make that mistake,
you'll always be the one to be blamed although as per the psychologist
and the psychiatrist, there's also a reason why I am not able to perform
A. sex to my wife because in those ten (10) years that we were together,
after the first one, [didn't] have any other affairs but I kept being
blamed that I [had] just because I [was] not able to perform sex to her.
The whole family, her family knows that in that premise because I got,
one time, in one of our quarrels x x x told me, "maybe you're not
making love with my daughter because you are having an affair with
 another woman." So, I know I made a mistake in the past but if I'm x x x
kept [being] reminded of it, it's a punishment, your Honor.

xxxx

What you initially said was your fault was...as you're now talking before
Q. this Honorable Court, is really the fault of the petitioner; is that what
you are saying?
There [were] times, your Honor, I would say it was my fault. There
[were] times it was caused by her faults as well. It's not one plus one it
was hers and one plus one it was mine, it depends on the situation.
A. We've been dealing with cases before so not all the time it's the fault of
Mrs. Cruz. And not all the time it's the fault of Mr. Cruz. It's a
relationship, there are times it's hers, there are times, it's mine but
we're able to fix it until this annulment situation came.

x x x x[67]
Nor can it be said that Nilo's failure to provide quality time for the family
was caused by his "inadequate personality disorder" or "unresolved oedipal
complex." Nilo explained that he has a taxing and demanding job, and that
unfortunately, with his working hours eating up his home life, while he was
able to provide his family with an adequate standard of living, the lack of
quality time for his wife became attenuated and resulted in severing his
bond with Marivi, who failed to understand the nature of his job. They were
a happy couple during the period of courtship, and even during the early
years of their marriage. Nilo testified:

ATTY. REVILLA:
Q. x x x What was the reason why you had to stay up late?
Ma'am, I'm...in those I.T. companies that I worked for whether
A. manager or managing director, my companies are...the companies are
involved in sales and marketing and support so it entails entertainment
 of clients, entertainment of principals coming from headquarters and
entertainment of customers with my staff and other company.

Q. When you say I.T., what does it stand for?

A. Information Technology.

You also referred to a headquarters. What do you mean by

Q.
headquarters?
Headquarters, if you work in a multinational company like companies I
A. worked for, they have headquarters in Hong Kong, they have
headquarters in Singapore, they have headquarters in the U.S.

Q. So you had to entertain principals corning from [these] headquarters?

A. As a part of the job as required by the principals who [visit] us.

Q. How often were you required to stay out late because of your job?
Ma'am, it is unpredictable. Sometimes, we were required to stay for
A. dinner and entertainment thereafter. Sometimes, we can go home early
also.

Could you not refuse the invitations of going out and just go home and
Q.
spend time with your family?
Sometimes I can refuse, sometimes I cannot. Because it becomes a
A.
condition of sale of the clients x x x.

xxxx

Q. So x x x what's the latest time of the night that you usually come home?
 My objective as a husband and as a father is to really come as early as I
can which I have explained on and on, your Honor. But to meet my
million dollar targets of the country, I have to do things beyond 5
o'clock. In several occasions when I tried to go home early, to my
A. disappointment, my kids are not at home because they were borrowed
by my in-laws to have merienda. That's why I complained to my wife
that time that "please tell me if they are going with my in-laws because I
don't want to deprive them also of the few times I'm able to go home
early."

Q. So, you are saying that you only have few times of coming home early?
A. Well, yes, but not very few.

Q. Okay. Have you tried to make an effort to remedy the situation?

Well, if I have my way to be able to direct my appointments in the
South, my meetings in Amkor Anam, Mamplasan, in Sta. Rosa then that
A. will allow me to be home at least 5-6 o'clock. But most of my meetings
in Makati, Quezon City, Manila especially with government clients [do]
allow me to go home early, your Honor.
x x x x[68]

THE COURT:
What about another fault you mentioned which is staying late, when did
this thing happen?

When I came back from my assignment in Hong Kong in 1988 when I

A.
was given a new job in sales and marketing.

xxxx
THE COURT:
So before the birth of your children, that is after your marriage with the
petitioner, this was not a problem?

Because, your Honor, I was assigned in Hong Kong and I was only
A.
twelve (12) minutes [away] by [foot] to our office x x x.

xxxx

And I was not in [sales] and marketing, I was the Administrative

Assistant of the President of IBM in Southeast Asia so it's the...purely
management administrative work as an administrative assistant so
there's [not] much of entertaining done in Hong Kong.

THE COURT:
Okay, so in other words, at that time, that was not a problem. It was
only a problem when you were appointed to your position in...

A. IBM.

THE COURT:
That was so many years after you got married with your wife?

We got married, your Honor, in 1987 then we went back to the

Philippines in July 1988 [when] I was given a new marketing and
A.
[sales] role as a manager of general marketing which is...which
encompasses all industries aside [from] the government.
THE COURT:
So you mean to say that this problem of staying late only happened
lately?

xxxx

The definition, your Honor, of my family...late is when you don't make

A. it at 7:00 o'clock or...[with] the family at 7:00 o'clock in the evening. So
if I don't make it at seven, I considered myself late.

THE COURT:
What is the reason why you have been late?

Your Honor, my job is not a 9 to 5 job because we...we call on

customers, we entertain customers, partners, principals, we also have
fellowship with our teams. So, we either have dinner or we have happy
hours. We also see friends after. So but, physically I cannot do that
everyday, your Honor, because I also wake up automatically at 6:00
everyday whether I have a drink, or have dinner, or I worked out in the
A.
evening or play[ed] basketball during that time, I always wake up at six.
So if I stayed up late like previously...like 2, 3, it's gonna be a burden for
me physically and [I would be] unable to perform my job well. So, like I
mentioned earlier in a hearing, your Honor, many times I tried to be
home by 10 to be able to watch. Before 10 to be able to watch the 10:00
o'clock news and be able to enjoy my ice cream while watching it.

THE COURT:
Well, one of those faults you mentioned is also working hard, why did
you say that it is your fault?
 In our industry, your Honor, when you work out, you will definitely end
A.
up late several couple of times, but not all the time.

xxxx

Your Honor, sometimes, I get all these complaints. But when they saw
my picture in the newspaper or in the TV having success stories and
contract signing, they are proud of me.

THE COURT:
When you say "so proud of me," to whom are you referring x x x?

My family. They call me, they congratulate me, we have dinners

A. together to celebrate but to get to that, is the working hard and staying
away from the family.

xxxx

THE COURT:
How long did you court your wife?

A. Six (6) months, your Honor.

x x x x[69]

THE COURT:
Could you say that you were a perfect couple at that time?
 When we were starting, your Honor, we [were] happy, and during the
time that we were in Hong Kong. But when we went back to Manila,
A. there are times (the witness is in tears)...adjusting to work and family
that is why it affected my relationship to her family and combination of
mistakes happened which I admitted.

THE COURT:
How would you describe your wife during your first years of marriage?

A. [She was] a very good wife.

THE COURT:
Did she perform her duties as a wife and as a mother?

A. Yes, your Honor.

THE COURT:
And was she that independent from her parents or she was too
dependent [on] her parents?

On her performing her duties, with the...as a wife and as a friend, she's
A. independent. When it comes to our problems, she would consult her
family.

THE COURT:
So only those times when you have a problem. Like what problems, Mr.
Witness?
A. Our relationship, your Honor.

THE COURT:
But most of the time, you were able to patch up your problems?

A. Yes, your Honor.

x x x x[70]
Interestingly, when asked if there was no more functional marital life
between him and Marivi, Nilo candidly highlighted his different perception
from his estranged wife:

ATTY. STA. MARIA, JR.:

So, Mr. Witness, well in reality today, Mr. Witness, even the petitioner
Q. believes that there is no more functional marital life in this relationship,
would you agree with that?
If that's the way she thinks, I...I will have my own way of looking at
A.
things because...

xxxx

Even...as I was saying since she was asking for nullity and you were
Q. asking for nullity, it's a fact of life as of today, as you speak today that
there is no more functional marital life between the two (2) of you?
You see, your Honor, that's why we're different. Her style is conclude
and conclude. I have a different style because of my background. I will
A.
only stop till death. I cannot share her legal counsel's statement with
my own thinking, your Honor.
x x x x[71]
Even the psychiatrist Dr. Villegas pinpointed the differences of the
estranged couple which led to squabbles -

ATTY. STA. MARIA, JR.:

Doctor, from your examination of both respondent and petitioner the
Q. obligation of trust and respect for each other, how did it not manifest in
this relationship?
The respondent [sees] the petitioner as one who's very negativistic on
him or who's very demanding and who is also trying to put him down
A.
because according to him, the petitioner would always see his weak
points rather than his strong points.

Q. Are you saying that this developed a non-trust just between them?
None trust. They do not trust each other anymore. On the part of the
petitioner, because of his womanizing activities and on the part of the
A.
respondent, that the petitioner is always looking at his weak points
rather than his strong points.

x x x x[72]
It is significant to note that Marivi failed to substantiate Nilo's penchant for
womanizing as a manifestation of his psychological incapacity. Aside from
her bare allegations, which were chiefly based on what other people told
her, she never presented irrefutable proof to corroborate her claims of his
sexual proclivities, i.e., that these proclivities were already existing before
the marriage and during the first years of their marriage. Nilo, on the other
hand, categorically admitted to having extramarital affairs in 1992, 2002,
and 2006, the period when the marriage was already on the rocks. Neither
is there evidence of Nilo's alleged oedipal complex, the manifestations of
which were not cited by the experts, that caused the couple to fall out of
love.
Anent Marivi's case, based on her family history as reflected in the experts'
clinical evaluation, she grew up in a well-functioning, supportive, and
emotionally healthy family environment. Even Nilo himself attested that
she was a good wife and a good mother to their children. Her demand for
attention, time, love, and fidelity is normal for a wife. The anger she felt
within her is also a legitimate reaction.

Yet the psychologist Dr. Encarnacion himself acknowledged that Marivi's

so-called psychological incapacity is in fact, curable. Thus:

ATTY. REVILLA:
So even without the respondent, Nilo Cruz, petitioner would still be
Q.
psychologically incapacitated?
I beg to [differ] from that because the needs were not fulfilled in this
particular marriage, it's like a tendency to have cancer, but if you take
care of yourself with the right environment, you will not catch cancer.
Those were previous positions, that's why I called them Histrionic
Personality Traits Behaviors and Features not a full blown Histrionic
A.
Personality Disorder, the needs were badly unfulfilled in this marriage
because she married a man who did not know the language of feeling of
showing some attention towards his spouse, meaning, if she is put in a
relationship with a man who is able to address these needs, she would
be better, she would be better in a marriage.

So this psychological incapacity of the petitioner is only dormant at the

Q.
time that she was not yet married?
A. Well, it's grave...

Q. Was it grave already at the time...

A. Yes, it is, it's grave but...
Q. Even before the marriage?
A. ...but not incurable, that is the only adjective, grave, pre-existing...

Q. Pre-existing?
Grave and pre-existing, yes, incurable, no, in the sense that if she
married properly if her needs were addressed, it would not appear in
that marriage.

But because of her marriage to the respondent, are you saying now that
Q.
her psychological incapacity now...
A. Became an incapacity, yes.

Q. ...became incurable?
A. No.

xxxx

Okay. I am quite curious about the curability of the personality disorder

of the petitioner. Now, if her needs are satisfied with...in case, assuming
Q.
the petitioner enters into another relationship and her needs are
satisfied then her incapacity is cured, is that what you're saying?
A. In effect, yes, in effect, yes.

Would you say, what are these needs of the petitioner that [you're]...not
Q.
satisfied of the respondent?
Need to be paid attention to, need to be valued, need to have an effect
A. on someone, it is a universal need. She was made to feel that she did not
have any effect on him and so are the children, x x x well, the father
 made the children feel that they, wife and two sons did not have any
effect on him, ma'am.

x x x[73]

One last question. The needs of the petitioner, like you say, do you think
Q. she was able to convey, clearly convey her needs to the respondent,
properly convey?
Very clearly, yes, and then when they were still not being heard,
well, iyon na nga eh, yung hostility niya and resentment would get the
A.
better of her as a ano...so it would become dysfunctional reaction upon
reaction. That's a good question.[74]
Upon the view we take of this case, thus, this Court believes that the
protagonists in this case are in reality simply unwilling to work out a
solution for each other's personality differences, and have thus become
overwhelmed by feelings of disappointment or disillusionment toward one
another. Sadly, a marriage, even if unsatisfactory, is not a null and void
marriage.[75]

WHEREFORE, the Petition is DENIED.

SO ORDERED.
Garlet v garlet – pdf file

G.R. No. 217993, August 09, 2017

MANUEL R. BAKUNAWA III, Petitioner, v. NORA REYES BAKUNAWA, Respondent.

RESOLUTION

REYES, JR., J.:

For resolution of the Court is a petition for review on certiorari1 filed by Manuel R. Bakunawa III
(Manuel) challenging the Decision2 dated March 27, 2014 and Resolution3 dated April 22, 2015 of the
Court of Appeals (CA) in CA-G.R. CV No. 98579, which upheld the validity of his marriage to Nora
Reyes Bakunawa (Nora).

The Facts

Manuel and Nora met in 1974 at the University of the Philippines where they were students and
became sweethearts. When Nora became pregnant, she and Manuel got married on July 26, 1975 at
St. Ignatius Church, Camp Aguinaldo, Quezon City.4

Because Manuel and Nora were both college undergraduates at that time, they lived with Manuel's
parents. While Nora was able to graduate, Manuel had to stop his studies to help his father in the
family's construction business. Manuel was assigned to provincial projects and came home only during
weekends. This setup continued even as Nora gave birth to their eldest child, Moncho Manuel
(Moncho). However, whenever Manuel came back from his provincial assignments, he chose to spend
his limited time with friends and girlfriends instead of his family. Nora resented this and they started
quarreling about Manuel's behavior. Worse, Manuel depended on his father and on Nora for their
family's needs.5

In 1976, Manuel and Nora lived separately from Manuel's parents. It was during this period that
Manuel first observed Nora's passiveness and laziness; she was moody and mercurial. Their house was
often dirty and disorderly. Thus, Manuel became more irritated with Nora and their verbal quarrels
escalated to physical violence.6

On May 9, 1977, Nora gave birth to their second child. However, nothing changed in their relationship.
Manuel spent most of his time with friends and engaged in drinking sprees. In 1979, he had an
extramarital affair and seldom came home. He eventually left Nora and their children in 1980 to
cohabit with his girlfriend. They considered themselves separated.7

In 1985, Manuel, upon Nora's request, bought a house for her and their children. After Manuel spent a
few nights with them in the new house, Nora became pregnant again and thereafter gave birth to their
third child.8

On June 19, 2008, Manuel filed a petition for declaration of nullity of marriage with the Regional Trial
Court (RTC) of Quezon City,9 on the ground that he and Nora are psychologically incapacitated to
comply with the essential obligations of marriage.

Manuel presented a psychiatrist, Dr. Cecilia Villegas (Dr. Villegas), who testified that Manuel has
Intermittent Explosive Disorder, characterized by irritability and aggressive behavior that is not
proportionate to the cause. Dr. Villegas diagnosed Nora with Passive Aggressive Personality Disorder,
marked by a display of negative attitude and passive resistance in her relationship with Manuel. Her
findings were based on her interview with Manuel and the parties' eldest son, Moncho, because Nora
did not participate in the psychological assessment.10

Manuel alleges in his petition that he continues to live with his common-law wife and has a son with
her, whereas, Nora lives alone in her unit in Cubao, Quezon City. Their house and lot was already
foreclosed following Nora's failure to pay a loan secured by a mortgage on the said property.11

Ruling of the RTC

The RTC granted the petition in its Decision12 dated March 28, 2011. The dispositive portion thereof
reads:
WHEREFORE, premises considered, judgment is hereby-rendered declaring the marriage
between MANUEL R. BAKUNAWA III and NORA REYES BAKUNAWA null and void ab initio under
Article 36 of the Family Code.

The Office of the City Civil Registrar of Quezon City is hereby ordered to make entries into the records
of the respective parties pursuant to the judgment of the Court.

Let a copy of this Decision be furnished upon the Office of Solicitor General, the Office of the City
Prosecutor of Quezon City, the Office of the Civil Registrars of Quezon City, and the National Statistics
Office, as well as the parties and counsel.

SO ORDERED.13
 Nora appealed the RTC decision to the CA, arguing inter alia that the RTC erred in finding that the
testimony of the psychiatrist is sufficient to prove the parties' psychological incapacity.

Ruling of the CA

The CA, in its Decision14 dated March 27, 2014, granted Nora's appeal and reversed the RTC decision.
The decretal portion of the decision states:
WHEREFORE, premises considered, the instant appeal filed by [Nora] is GRANTED. The Decision
dated March 28, 2011 of the RTC, National Capital Judicial Region in Civil Case No. Q-08-62822
is REVERSED and SET ASIDE.

SO ORDERED.15

The CA denied Manuel's motion for reconsideration16 through a Resolution17 dated April 22, 2015.

Manuel filed the present petition raising the following grounds:

I. THE HONORABLE CA ERRED WHEN IT UPHELD THE VALIDITY OF THE MARRIAGE OF THE PARTIES
DESPITE MORE THAN CLEAR AND CONVINCING EVIDENCE TO DECLARE ITS NULLITY DUE TO THE
PSYCHOLOGICAL INCAPACITY OF EITHER OR BOTH PARTIES TO PERFORM THEIR MARITAL
OBLIGATIONS; and

II. THE HONORABLE CA ERRED WHEN IT FAILED TO RECONSIDER ITS DECISION DATED MARCH 27,
2014 DESPITE MORE THAN COMPELLING REASONS FOR THE REVERSAL THEREOF. 18

Ruling of the Court

As the CA correctly ruled, the totality of evidence presented by Manuel comprising of his testimony
and that of Dr. Villegas, as well as the latter's psychological evaluation report, is insufficient to prove
that he and Nora are psychologically incapacitated to perform the essential obligations of marriage.

Dr. Villegas' conclusion that Manuel is afflicted with Intermittent Explosive Disorder and that Nora has
Passive Aggressive Personality Disorder which render them psychologically incapacitated under Article
36 of the Family Code,19 is solely based on her interviews with Manuel and the parties' eldest child,
Moncho. Consequently, the CA did not err in not according probative value to her psychological
evaluation report and testimony.

In Republic of the Philippines v. Galang,20 the Court held that "[i]f the incapacity can be proven by
independent means, no reason exists why such independent proof cannot be admitted to support a
conclusion of psychological incapacity, independently of a psychologist's examination and
report."21 In Toring v. Toring, et al.,22 the Court stated that:
Other than from the spouses, such evidence can come from persons intimately related to them, such
as relatives, close friends or even family doctors or lawyers who could testify on the allegedly
incapacitated spouses' condition at or about the time of marriage, or to subsequent occurring events
that trace their roots to the incapacity already present at the time of marriage.23

In this case, the only person interviewed by Dr. Villegas aside from Manuel for the spouses'
psychological evaluation was Moncho, who could not be considered as a reliable witness to establish
the psychological incapacity of his parents in relation to Article 36 of the Family Code, since he could
not have been there at the time his parents were married.

The Court also notes that Dr. Villegas did not administer any psychological tests on Manuel despite
having had the opportunity to do so. While the Court has declared that there is no requirement that
the person to be declared psychologically incapacitated should be personally examined by a
physician,24 much less be subjected to psychological tests, this rule finds application only if the totality
of evidence presented is enough to sustain a finding of psychological incapacity. In this case, the
supposed personality disorder of Manuel could have been established by means of psychometric and
neurological tests which are objective means designed to measure specific aspects of people's
intelligence, thinking, or personality.25

With regard to the Confirmatory Decree26 of the National Tribunal of Appeals, which affirmed the
decision of the Metropolitan Tribunal of First Instance for the Archdiocese of Manila in favor of nullity
of the Catholic marriage of Manuel and Nora, the Court accords the same with great respect but does
not consider the same as controlling and decisive, in line with prevailing jurisprudence.27

WHEREFORE, the petition for review is hereby DENIED. The Decision dated March 27, 2014 and
Resolution dated April 22, 2015 of the Court of Appeals in CA-G.R. CV No. 98579 are AFFIRMED.

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 counter-petitioners' prayer
and named Virginia Y. Yaptinchay special administratrix upon a P50,000-bond. 1awphil.nêt

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.