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G.R. No. 11263 November 2, 1916 ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendant-appellee.

TRENT, J.: This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff declined to amend, the latter appealed. It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant. The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as follows: That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands of the defendant and refused to perform any act other than legal and valid cohabitation; that the defendant, since that date had continually on other successive dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and different parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents. Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status of the law touching and governing the question under consideration. Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other. ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the wife's property.) ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence. Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty when the husband removes his residence to a foreign country. And articles 143 and 149 of the Civil Code are as follows: ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding article. 1. The consorts. xxx xxx xxx ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed or by receiving and maintaining in his own home the person having the right to the same. Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife to live with her husband is not one of them. The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. But the husband who is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:. That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being considered wherein, either because this right would be opposed to the exercise of a preferential right or because of the existence of some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be understood as being thereby restricted. Whereas the only question discussed in the case which gave rise to this appeal was whether there was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in his own house the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural father simply claims his child for the purpose of thus better attending to her maintenance, no action having been taken by him toward providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise of the option in the present case, without prejudice to such decision as may be deemed proper with regard to

the other questions previously cited in respect to which no opinion should be expressed at this time. The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a preexisting or preferential right in each of these cases which was opposed to the removal of the one entitled to support. It is true that in the first the person claiming the option was the natural father of the child and had married a woman other than the child's mother, and in the second the right to support had already been established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the option given by article 149 of the Civil Code may not be exercised in any and all cases. Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence, for support and the revocation of the powers heretofore granted in reference to the administration and disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said: Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other with support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the duties of spouses not legally separated, among which duties are those of their living together and mutually helping each other, as provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the management of his wife's property and of the product of the other property belonging to the conjugal partnership; and Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has established; and. Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally separated, it is their duty to live together and afford each other help and support; and for this reason, it cannot be held that the former has need of support from his wife so that he may live apart from her without the conjugal abode where it is

his place to be, nor of her conferring power upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently, those of his own support without need of going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1 and 5 of the appeal. From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated voluntarily in accordance with an agreement previously made. At least there are strong indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will." If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not be controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily abandons such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband who had willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been instituted, said: In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode, although he claims, without however proving his contention, that the person responsible for this situation was his wife, as she turned him out of the house. From this state of affairs it results that it is the wife who is party abandoned, the husband not having prosecuted any action to keep her in his company and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation of the spouses should be regulated in the manner it indicates, has made the errors of law assigned in the first three grounds alleged, because the nature of the duty of affording mutual support is compatible and enforcible in all situations, so long as the needy spouse does not create any illicit situation of the court above described.lawphil.net If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under consideration, that neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only

ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case just cited after an exhaustive examination of the entire subject. Although the case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the decision was promulgated by this court in that case in December, 1903, no change or modification of the rule has been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction. But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a determination of the question whether the wife has a good and sufficient cause for living separate from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The weakness of this argument lies in the assumption that the power to grant support in a separate action is dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much on the express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme sole. The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case, rest. G.R. No. L-23482 August 30, 1968 ALFONSO LACSON, petitioner, vs. CARMEN SAN JOSELACSON and THE COURT OF APPEALS, respondents. ----------------------------G.R. No. L-23767 August 30, 1968 CARMEN SAN JOSE-LACSON, plaintiff-appellant, vs. ALFONSO LACSON, defendant-appellee. ----------------------------G.R. No. L-24259 August 30, 1968 ALFONSO LACSON, petitioner-appellee, vs. CARMEN SAN JOSE-LACSON, petitioner-appellant. CASTRO, J.: These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue the resolution of which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision. The antecedent facts are not disputed. Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse) were married on February 14, 1953. To them were born four children, all alive.

On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as support for them and herself. However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros Occidental (hereinafter referred to as the CFI). The important and pertinent portions of the petition, embodying their amicable settlement, read as follows: 3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in Manila. 4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval as required by Article 191 of the Civil Code of the Philippines the particular terms and conditions of their mutual agreement being as follows: (a) There will be separation of property petitioner Carmen San Jose-Lacson hereby waiving any and all claims for a share in property that may be held by petitioner Alfonso Lacson since they have acquired no property of any consequence. (b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as they may acquire without the consent of the other and all earnings from any profession, business or industry as may be derived by each petitioner shall belong to that petitioner exclusively. (c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall be awarded to petitioner Carmen San JoseLacson. (d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of P300.00 for the support of the children in her custody. (e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at their respective residences and, during the summer months, the two children in the custody of each petitioner shall be given to the other except that, for this year's summer months, all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson this judgment of course being subject to enforcement by execution writ and contempt. 5. Petitioners have no creditors. WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except that the Court shall immediately approve the terms set out in paragraph 4 above and embody the same in a judgment immediately binding on the parties hereto to the end that

any non-compliance or violation of its terms by one party shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors have not been terminated.". Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment) approving and incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all the four children to the respondent spouse and remitted money for their support. On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed the ... Joint Petition as the only means by which she could have immediate custody of the ... minor children who are all below the age of 7," and thereafter prayed that she "be considered relieved of the ... agreement pertaining to the custody and visitation of her minor children ... and that since all the children are now in her custody, the said custody in her favor be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to dismiss the complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued an order which sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity or legality of the compromise agreement in connection only with the custody of their minor children. On October 14, 1964 the Court of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below no evidence, testimonial or documentary, presented only a question of law pends resolution in the appeal." . The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered into the joint petition as the only means by which she could have immediate custody of her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining to the custody and visitation of her minor children and to relieve her from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963, denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated April 27, 1963 and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified the said appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and ... appellant did not specifically ask to be allowed to present evidence on her behalf." . The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in excess of jurisdiction in ordering the immediate execution of the compromise judgment in its order of June 22, 1963, thus in effect

depriving her of the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents therein and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution issued pursuant to the order of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for execution of the compromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it relates to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for execution of said judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration was denied by the Court of Appeals in its resolution dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned the following errors: (1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise judgment. (2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise judgment which is involved in two appeals, instead of the issue of grave abuse of discretion in ordering its execution. (3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based violates article 363 of the Civil Code. 1wph1.t As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise agreement entered into by the parties and the judgment of the CFI grounded on the said agreement, are conformable to law. We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with respect to the separation of property of the spouses and the dissolution of the conjugal partnership. The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial sanction is secured beforehand. Thus the new Civil Code provides: In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied) The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. (Art. 191, par. 4, emphasis supplied). In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements.

It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened between them, the propriety of severing their financial and proprietary interests is manifest. Besides, this Court cannot constrain the spouses to live together, as [I]t is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. .. At best such an order can be effective for no other purpose than to compel the spouse to live under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married couple shows that the policy of the practice is extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60). However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses, which again in the language of Arroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and fraught with grave danger to all concerned." We would like to douse the momentary seething emotions of couples who, at the slightest ruffling of domestic tranquility brought about by "mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion" without more would be minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in making it as difficult as possible for married couples impelled by no better cause than their whims and caprices to abandon each other's company. '... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59). We now come to the question of the custody and support of the children. It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was filed on April 27, 1963. However, when the respondent spouse signed the joint petition on the same matter of custody and support of the children and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner spouse who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so - had the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody and support of the children based on those grounds. For it is no defense against the dismissal of the action that the case before the CFI was filed later than the action before the JDRC, considering:. ... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They

provide only that there is a pending action, not a pending prior action. 1 We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the custody of the two older children (both then below the age of 7). The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this new provision was explained by the Code Commission thus: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12). The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court. The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5 years old, respectively, to the father, in effect sought to separate them from their mother. To that extent therefore, it was null and void because clearly violative of article 363 of the Civil Code. Neither does the said award of custody fall within the exception because the record is bereft of any compelling reason to support the lower court's order depriving the wife of her minor children's company. True, the CFI stated in its order dated June 22, 1963, denying the respondent spouse's motion for reconsideration of its order dated April 27, 1963, that . ... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the bitter truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their children from embarrassment and inferiority complex which may inevitably stain their lives. .. If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the public records. This is for the sake and for the welfare of the minor children.". But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere insinuations; they must be confronted with facts before they can properly adjudicate. It might be argued and correctly that since five years have elapsed since the filing of these cases in 1963, the ages of the four children should now be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and Ramon 5. Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the respondent spouse's position. Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1wph1.t Article 356 of the new Civil Code provides: Every child: (1) Is entitled to parental care; (2) Shall receive at least elementary education;

(3) Shall be given moral and civic training by the parents or guardian; (4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development. It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the right granted to him by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To be sure, this was not a sufficient basis to determine the fitness of each parent to be the custodian of the children. Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter alia: ... When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interestpermitting the child to choose which parent it prefers to live with if it be over ten years of age , unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty... (Emphasis supplied). One last point regarding the matter of support for the children assuming that the custody of any or more of the children will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of P150 to be given by the petitioner spouse for each child, still this Court must speak out its mind on the insufficiency of this amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of prices of all commodities, goods, and services, not to mention the fact that all the children are already of school age. We believe, therefore, that the CFI may increase this amount of P150 according to the needs of each child. With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three appeals. ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement as to costs. G.R. No. L-19671 July 26, 1966 PASTOR B. TENCHAVEZ, plaintiff and appellant, vs. VICENTA F. ESCAO, ET AL., defendants and appellees. RESOLUTION REYES, J.B.L., J.: Not satisfied with the decision of this Court, promulgated on 29 November 1965, in the above-entitled case, plaintiff-appellant Pastor B. Tenchavez and defendant-appellee Vicenta F. Escao, respectively, move for its reconsideration; in addition, Russell Leo Moran, whom said defendant married in the United States, has filed, upon leave previously granted, a memorandum in intervention.

Movant Tenchavez poses the novel theory that Mamerto and Mina Escao are undeserving of an award for damages because they are guilty of contributory negligence in failing to take up proper and timely measures to dissuade their daughter Vicenta from leaving her husband Tenchavez obtaining a foreign divorce and marrying another man (Moran). This theory cannot be considered: first, because this was not raised in the court below; second, there is no evidence to support it; third, it contradicts plaintiff's previous theory of alienation of affections in that contributory negligence involves an omission to perform an act while alienation of affection involves the performance of a positive act. The prayer of appellant Tenchavez in his motion for reconsideration to increase the damages against Vicenta (P25,000 for damages and attorney's fees were awarded to Tenchavez in the decision) should, likewise, be denied, all factors and circumstances in the case having been duly considered in the main decision. In seeking a reexamination of the decision, defendant-appellee Vicenta Escao, in turn, urges a comparison between the two marriages, stating, in plainer terms, that the Tenchavez-Escano marriage was no more than a ceremony, and a faulty one at that, while the Moran-Escao marriage fits the concept of a marriage as a social institution because publicly contracted, recognized by both civil and ecclesiastical authorities, and blessed by three children. She concludes that, since the second marriage is the better one, it deserves the laws recognition and protection over the other. This is a dangerous proposition: it legalizes a continuing polygamy by permitting a spouse to just drop at pleasure her consort for another in as many jurisdictions as would grant divorce on the excuse that the new marriage is better than the previous one; and, instead of fitting the concept of marriage as a social institution, the proposition altogether does away with the social aspects of marriage in favor of its being a matter of private contract and personal adventure. The said appellee claims that state recognition should be accorded the Church's disavowal of her marriage with Tenchavez. On this point, our main decision limited itself to the statement, "On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. P-2)", without stating that papal dispensation was actually granted, the reason being that Vicenta's claim that dispensation was granted was not indubitable, and her counsel, during the trial in the lower court, did not make good his promise to submit the document evidencing the papal dispensation; in fact, no such document appears on record. The Church's disavowal of the marriage, not being sufficiently established, it cannot be considered. Vicenta's belated appeal to Canon law, after she had sought and failed to obtain annulment in the civil courts, and after she had flaunted its principles by obtaining absolute divorce, does not, and can not, sound convincing. Particularly when account is taken of the circumstances that she obtained the Nevada divorce in 1950 and only sought ecclesiastical release from her marriage to Tenchavez in 1954. The award of moral damages against Vicenta Escao is assailed on the ground that her refusal to perform her wifely duties, her denial of consortium and desertion of her husband are not included in the enumeration of cases where moral damages may lie. The argument is untenable. The acts of Vicenta (up to and including her divorce, for grounds not countenanced by our law, which was hers at the time) constitute a wilful infliction of injury upon plaintiff's feelings in a manner "contrary to morals, good customs or public policy" (Civ. Code, Art. 21) for which Article 2219 (10) authorizes an award of moral damages. Neither the case of Ventanilla vs. Centeno, L-14333, 28 January 1961 (which was a suit filed by a client against his lawyer for failure to perfect an appeal on time), nor the case of Malonzo vs. Galang, L-13851, 27 July 1960 (wherein the precise ruling was that moral damages may not be recovered for a clearly unfounded civil action or proceeding), now invoked by the said defendant-appellee, is in point. It is also argued that, by the award of moral damages, an additional effect of legal separation has been added to Article 106. Appellee obviously mistakes our grant of damages as an effect of legal separation. It was plain in the decision that the damages attached to

her wrongful acts under the codal article (Article 2176) expressly cited. Appellee-movant commits a similar mistake by citing Arroyo vs. Arroyo, 42 Phil. 54, and Ramirez-Cuaderno vs. Cuaderno, L-20043, 28 November 1964, to support her argument that moral damages did not attach to her failure to render consortium because the sanction therefor is spontaneous mutual affection, and not any legal mandate or court order. The Arroyo case did rule that "it is not within the province of courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other", but it referred to physically coercive means, the Court declaring that We are disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel prostitution of the purely personal right of consortism. (Cas cit., p. 60) (Emphasis supplied) But economic sanctions are not held in our law to be incompatible with the respect accorded to individual liberty in civil cases. Thus, a consort who unjustifiably deserts the conjugal abode can be denied support (Art. 178, Civil Code of the Phil.). And where the wealth of the deserting spouse renders this remedy illusory, there is no cogent reason why the court may not award damage as it may in cases of breach of other obligations to do intuitu personae even if in private relations physical coercion be barred under the old maxim "Nemo potest precise cogi and factum". For analogous reasons, the arguments advanced against the award of attorney's fees must be rejected as devoid of merit. Contrary to intervenor Moran's contention, the decision did not impair appellee's constitutional liberty of abode and freedom of locomotion, as, in fact, Vicenta Escao did exercise these rights, and even abused them by stating in her application for a passport that she was "single", the better to facilitate her flight from the wrongs she had committed against her husband. The right of a citizen to transfer to a foreign country and seek divorce in a diverse forum is one thing, and the recognition to be accorded to the divorce decree thus obtained is quite another; and the two should not be confused. Intervenor reiterates that recognition of Vicenta's divorce in Nevada is a more enlightened view. The argument should be addressed in the legislature. As the case presently stands, the public policy of this forum is clearly adverse to such recognition, as was extensively discussed in the decision. The principle is well-established, in private international law, that foreign decrees cannot be enforced or recognized if they contravene public policy (Nussbaum, Principles of Private International Law, p. 232). It is thoroughly established as a broad general rule that foreign law or rights based therein will not be given effect or enforced if opposed to the settled public policy of the forum. (15 C.J.S. 853) SEC. 6. Limitations. In the recognition and enforcement of foreign laws the Courts are slow to overrule the positive law of the forum, and they will never give effect to a foreign law where to do so would prejudice the state's own rights or the rights of its citizens or where the enforcement of the foreign law would contravene the positive policy of the law of the forum whether or not that policy is reflected in statutory enactments. (11 Am. Jur., 300-301). A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law. Cottington's Case, 2 Swan St. 326, note; Roach vs. Garvan, I Ves St. 157; Harvey vs. Farnie, LR 8 App. Cas. 43; Cheely vs. Clayton, 110 U.S. 701 [28:298]. (Hilton vs. Guyot 159 U.S. 113, 167; 40 L. Ed. 95, 110) (Emphasis supplied) It is, therefore, error for the intervenor to ask that "private international law rather than Philippine civil law should decide the instant case", as if the two branches of the law contradicted one another. In a consolidated paper (intervenor's rejoinder and appellee Vicenta Escao's supplemental motion for reconsideration), the issue is raised that "the Supreme Court cannot reverse the decision of the lower

court dismissing the complaint nor sentence Vicenta Escao to pay damages, without resolving the question of lack of jurisdiction over her person". A resolution by the Supreme Court of the issue of jurisdiction over the person of appellee Vicenta Escao, and which was disallowed by the court below, was unnecessary because the matter was not properly brought to us for resolution, either on appeal or by special remedy which could have been availed of by the appellee when the lower court, on 1 June 1957, overruled her challenge to its jurisdiction. Neither was the alleged error of the lower court put in issue in her brief as appellee, as it was incumbent upon her to do (Relativo vs. Castro, 76 Phil. 563; Lucero vs. De Guzman, 45 Phil. 852). Not affecting the jurisdiction over the subject matter, the court properly ignored the point (Rev. Rule 51, section 7). SEC. 7. Questions that may be decided. No error which does not affect the jurisdiction over the subject matter will be considered unless stated in the assignment of errors and properly argued in the brief, save as the court, at its option, may notice plain errors not specified, and also clerical errors. At any rate, ... .When, however, the action against the non-resident defendant affects the personal status of the plaintiff, as, for instance, an action for separation or for annulment of marriage, ..., Philippine courts may validly try and decide the case, because, then, they have jurisdiction over the res, and in that event their jurisdiction over the person of the non-resident defendant is not essential. The res is the personal status of the plaintiff domiciled in the Philippines, ... . (1 Moran 411, 1963 Ed., citing Mabanag vs. Gallemore, 81 Phil. 254) The award of damages, in the present case, was merely incidental to the petition for legal separation. For all these reasons, and because she filed a counterclaim against plaintiff (Rec. App. pp. 205-206), Vicenta should be deemed to have withdrawn the objection to the lower court's jurisdiction over her person, even though she had stated in the counterclaim that she was not waiving her special defense of lack of jurisdiction.1wph1.t It is urged that the actions for legal separation and for quasi-delict have prescribed: the first, because it was not filed within one year from and after the date on which the plaintiff became cognizant of the cause; and, the second, because it was not filed within four years since the Tenchavez-Escao marriage in 1948. The argument on both points is untenable. The action for legal separation was filed on 31 May 1956. Although in a letter, under date of 10 December 1954, the Department of Foreign Affairs informed plaintiff Tenchavez that "According to information, she (appellee) secured a decree of divorce on October 21, 1950 ... and married an American citizen, Russel Leo Moran, on September 13, 1954", there is no satisfactory and convincing evidence as to the time when plaintiff Tenchavez, received the said letter; nor was she duty-bound to act immediately upon hearsay information. Since prescription is an affirmative defense, the burden lay on the defendant to clearly prove it, and her proof on it was inadequate. On the argument about the action on tort having prescribed, the basis thereof is erroneous: the marriage was not the cause of appellee's wrongful conduct. Her denial of cohabitation, refusal to render consortium and desertion of her husband started right after their wedding but such wrongs have continued ever since. She never stopped her wrongdoings to her husband, so that the period of limitation has never been completed. Finally, we see no point in discussing the question of appellee Escao's criminal intent, since nothing in the main decision was designed or intended to prejudge or rule on the criminal aspect of the case, if any, or any of its constituent elements. It is to be noted that in this civil case only a preponderance of evidence is required, and not proof beyond reasonable doubt. While much could be said as to the circumstances surrounding the divorce of the appellee, we prefer to

abstain from so doing in order not to influence in any way the criminal case, should any be instituted. For the reasons above cited, all motions for reconsideration are hereby denied. G.R. No. 127406 November 27, 2000 OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M. REYES, respondents. DECISION QUISUMBING, J.: This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160, declaring the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly support for their children Faye Eloise Reyes and Rachel Anne Reyes. As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared their marriage null and void ab initio for lack of a valid marriage license. The church wedding on August 27, 1977, was also declared null and void ab initio for lack of consent of the parties. Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City Court of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila. On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch 160, praying that his marriage to petitioner be declared null and void. He alleged that they had no marriage license when they got married. He also averred that at the time he married petitioner, he was still married to Anna Maria. He stated that at the time he married petitioner the decree of nullity of his marriage to Anna Maria had not been issued. The decree of nullity of his marriage to Anna Maria was rendered only on August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979. Petitioner, in defending her marriage to private respondent, pointed out that his claim that their marriage was contracted without a valid license is untrue. She submitted their Marriage License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question this document when it was submitted in evidence. Petitioner also submitted the decision of the Juvenile and Domestic Relations Court of Quezon City dated August 4, 1980, which declared null and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church marriage to said Anna Maria on August 27, 1977. These documents were submitted as evidence during trial and, according to petitioner, are therefore deemed sufficient proof of the facts therein. The fact that the civil marriage of private respondent and petitioner took place on April 4, 1979, before the judgment declaring his prior marriage as null and void is undisputed. It also appears indisputable that private respondent and petitioner had a church wedding ceremony on April 4, 1982.1 The Pasig RTC sustained private respondents civil suit and declared his marriage to herein petitioner null andvoid ab initio in its decision dated November 4, 1991. Both parties appealed to respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial courts decision. It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured before a subsequent marriage could be validly contracted. Said the appellate court: We can accept, without difficulty, the doctrine cited by defendants counsel that no judicial decree is necessary to establish the invalidity of void marriages. It does not say, however, that a second marriage may proceed even without a judicial decree. While it is true that if a

marriage is null and void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule that the matter of whether a marriage is valid or not is for each married spouse to determine for himself for this would be the consequence of allowing a spouse to proceed to a second marriage even before a competent court issues a judicial decree of nullity of his first marriage. The results would be disquieting, to say the least, and could not have been the intendment of even the now-repealed provisions of the Civil Code on marriage. xxx WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise: 1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M. Reyes and defendantappellant [herein petitioner] Ofelia P. Ty is declared null and void ab initio; 2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4, 1991; and 3. Cost against plaintiff-appellant Eduardo M. Reyes. SO ORDERED.2 Petitioners motion for reconsideration was denied. Hence, this instant petition asserting that the Court of Appeals erred: I. BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW. II IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF APPEALS. III IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE. IV IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE DEFENDANTAPPELLANT. The principal issue in this case is whether the decree of nullity of the first marriage is required before a subsequent marriage can be entered into validly? To resolve this question, we shall go over applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the second which we shall discuss jointly. In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private respondent null andvoid for lack of a prior judicial decree of nullity of the marriage between private respondent and Villanueva. The appellate court rejected petitioners claim that People v. Mendoza3 and People v. Aragon4 are applicable in this case. For these cases held that where a marriage is void from its performance, no judicial decree is necessary to establish its invalidity. But the appellate court said these cases, decided before the enactment of the Family Code (E.O. No. 209 as amended by E.O No. 227), no longer control. A binding decree is now needed and must be read into the provisions of law previously obtaining. 5 In refusing to consider petitioners appeal favorably, the appellate court also said: Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case. Although decided by the High Court in 1992, the facts situate it within the regime of the nowrepealed provisions of the Civil Code, as in the instant case. xxx 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. . . .6 At the outset, we must note that private respondents first and second marriages contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs

significantly from the recent cases of Bobis v. Bobis7 and Mercado v. Tan,8 both involving a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the Family Code,9 under which a judicial declaration of nullity of marriage is clearly required. Pertinent to the present controversy, Article 83 of the Civil Code provides that: Art. 83. 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: (1) The first marriage was annulled or dissolved; or (2) 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 if the absentee, though he has been absent for less than seven years, is generally considered as dead and before any person believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting. Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that no judicial decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage. There is no need for a judicial declaration that said second marriage is void. Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not. In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband. The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity. 14 But in Odayat v. Amante (1977),15 the Court adverted to Aragon and Mendoza as precedents. We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year. The Court held that no judicial decree is necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.16 Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying on Consuegra, concluded that:18 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 (citing Consuegra) 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. (Emphasis supplied). In Yap v. Court of Appeals,19 however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings. At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code. 20 Article 40 of said Code expressly required a judicial declaration of nullity of marriage Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In Terre v. Terre (1992)21 the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre should have known that the prevailing case law is 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." The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),22 the Court held: Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).23 However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997)24 the first wife charged a municipal trial judge of immorality for entering into a second marriage. The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegeland the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time. Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude that private respondents second marriage to petitioner is valid. Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the present case, for to do so would prejudice the vested rights of petitioner and of her children. As held in Jison v. Court of Appeals,25the Family Code has retroactive effect unless there be impairment of vested rights. In the present case, that impairment of vested rights of petitioner and the children is patent. Additionally, we are not quite prepared to give assent to the appellate courts finding that despite private respondents "deceit and perfidy" in contracting marriage with petitioner, he could benefit from her silence on the issue. Thus, coming now to the civil effects of the church ceremony wherein petitioner married private respondent using the marriage license used three years earlier in the civil ceremony, we find that petitioner now has raised this matter properly. Earlier

petitioner claimed as untruthful private respondents allegation that he wed petitioner but they lacked a marriage license. Indeed we find there was a marriage license, though it was the same license issued on April 3, 1979 and used in both the civil and the church rites. Obviously, the church ceremony was confirmatory of their civil marriage. As petitioner contends, the appellate court erred when it refused to recognize the validity and salutary effects of said canonical marriage on a technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during trial. She argues that such failure does not prevent the appellate court from giving her defense due consideration and weight. She adds that the interest of the State in protecting the inviolability of marriage, as a legal and social institution, outweighs such technicality. In our view, petitioner and private respondent had complied with all the essential and formal requisites for a valid marriage, including the requirement of a valid license in the first of the two ceremonies. That this license was used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof in the church wedding of the same parties to the marriage, for we hold that the latter rites served not only to ratify but also to fortify the first. The appellate court might have its reasons for brushing aside this possible defense of the defendant below which undoubtedly could have tendered a valid issue, but which was not timely interposed by her before the trial court. But we are now persuaded we cannot play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls "his own deceit and perfidy." On the matter of petitioners counterclaim for damages and attorneys fees.1wphi1 Although the appellate court admitted that they found private respondent acted "duplicitously and craftily" in marrying petitioner, it did not award moral damages because the latter did not adduce evidence to support her claim.26 Like the lower courts, we are also of the view that no damages should be awarded in the present case, but for another reason. Petitioner wants her marriage to private respondent held valid and subsisting. She is suing to maintain her status as legitimate wife. In the same breath, she asks for damages from her husband for filing a baseless complaint for annulment of their marriage which caused her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from her parents. Should we grant her prayer, we would have a situation where the husband pays the wife damages from conjugal or common funds. To do so, would make the application of the law absurd. Logic, if not common sense, militates against such incongruity. Moreover, our laws do not comprehend an action for damages between husband and wife merely because of breach of a marital obligation.27 There are other remedies.28 WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age or otherwise legally entitled thereto. Costs against private respondent. SO ORDERED. G.R. No. L-39587 March 24, 1934 ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs. THE MANILA RAILROAD COMPANY, defendant-appellant. VILLA-REAL, J.: This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of which reads as follows: Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the plaintiffs has the

nature of a joint action, it must be understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius. In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial court in its said judgment, which will be discussed in the course of this decision. As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the same court a quo in its judgment in question, which will be discussed later. This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damages suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the complaint, with costs. The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint. The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit: The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the magazines The American Weekly of New York and The Sphere of London. Some of his works have been translated into various languages. He had others in preparation when the accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore, she acted as his secretary. At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of

10

engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the crossing. On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood. The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar. The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for several days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to keep her balance. Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at great speed. Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the opinion that the accident was due to negligence on the part of the defendant-appellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees the flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes inspection of their work and supervision of the discharge of their duties. However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is not enough that the

latter has been guilty of negligence, but it is also necessary that the said victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after them, employing the care and diligence that a good father of a family should apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had already become inevitable. In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the diligence of a good father of a family in the supervision of the said employees in the discharge of their duties. The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages which the defendant company should pay to the plaintiffs-appellants. With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is reasonable. As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in which the said expenses have been incurred. Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big scar, which she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys. 1vvphi1.ne+ As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is

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the same excessive, taking into consideration the fact that the lacerations received by her have left deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her matrimonial future. With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness. This question has impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to be reasonable. As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in his business as journalist and author, which services consisted in going over his writings, translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead. The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration. In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows: The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . . Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. In the case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic services and their nature,

rendered by her prior to the accident, in order that it may serve as a basis in estimating their value. Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing. In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages for deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her illness. The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions of section 510 of Act No. 190. Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered. A.C. No. 3405 June 29, 1998 JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent. PER CURIAM: Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint 1 for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers. 2 The complainant narrated: The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances.

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It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar. It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.] 3 This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 4 On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from "emotional confusion arising from extreme jealousy." The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous relationship with one Gina Espita nor abandoned his family. 5 Supporting her letter were an Affidavit of Desistance 6 and a Motion to Dismiss, 7 attached as Annexes A and B, which she filed before the IBP commission on bar discipline. 8 In a Decision dared October 8, 1991, the IBP Board of Governors 9dismissed the complaint of Mrs. Narag for failure to prosecute. 10 The case took an unexpected turn when, on November 25, 1991, this Court 11 received another letter 12 from the complainant, with her seven children 13 as co-signatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her. 14 In his Comment on the complainant's letter of November 11, 1991, filed in compliance with this Court's Resolution issued on July 6, 1992, 15 respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistance 16 and Motion to Dismiss, 17 even appearing before the investigating officer, Commissioner Racela, to testify under oath "that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof." In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed, viz: What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her "loving" jealousy. Then, as is her nature, a few hours afterwards, when her jealousy cools off, she repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy. 18 On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP. 19 In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following: 20 2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in

life: a purposeful and meaningful education. Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now full-fledged professionals, mature, and gainfully employed. . . . xxx xxx xxx Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family. Their marriage has become a torture chamber in which Your Respondent has been incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if only to preserve their family and their marriage. But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in "Death and the Maiden", can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. . . . 5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health . . . Even in this case, Your Respondent never

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revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, goodfor-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a man's dearest possession in life his good name, reputation and dignity? Because of Complainant's virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant. 21 To prove the alleged propensity of his wife to file false charges, respondent presented as evidence the following list of the complaints she had filed against him and Gina Espita: 3.1 Complaint for Immorality/Neglect of Duty . . . 3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. . . . 3.3 Complaint for Concubinage. Provincial Prosecutor's Office of Cagayan. I.S No. 89-114. . . . 3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No. 1-92-0083. . . . 3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED. 3.6 Complaint for Concubinage. Provincial Prosecutor's Office of Cagayan. I.S. No. 92-109. DISMISSED. (. . .). Complainant filed Motion for Reconsideration. DENIED. (. . .). 3.7 Complaint for Disbarment (. . .) with S[upreme] C[ourt]. Withdrawn (. . .). DISMISSED by IBP Board of Governors (. . .). Re-instituted (. . .). 3.8 Complaint for Disbarment, again (. . .). Adm. Case No. 3405. Pending. 3.9 Complaint for Concubinage, again (. . .). Third MCTC, Tumauini, Isabela. Pending. . . . 22 In his desperate effort to exculpate himself, he averred: I. That all the alleged love letters and envelopes (. . .), picture (. . .) are inadmissible in evidence as enunciated by the Supreme Court in "Cecilia Zulueta vs. Court of Appeals, et.al.", G.R. No. 107383, February 20, 1996. (. . .). xxx xxx xxx II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint Louis College of Tuguegarao. He never caused the employment of said woman in the DTI. He never had or is having any illicit relationship with her anywhere, at any time. He never lived with her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, or in any other place. He never begot a child or children with her. Finally, respondent submits that all the other allegations of Mrs. Narag are false and fabricated, . . . xxx xxx xxx III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to

the conjugal home many times with the help of mutual friends to save the marriage and the family from collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag refused all these efforts of respondent Narag. . . . IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous, virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically, mentally, emotionally, and psychologically, . . . V. Complainant Julieta Narag's claim in her counter-manifestation dated March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained through force and intimidation, is not true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely without force or intimidation, as shown by the transcript of stenographic notes of the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. . . . xxx xxx xxx VI. Respondent Atty. Narag is now an old man a senior citizen of 63 years sickly, abandoned, disgraced, weakened and debilitated by progressively degenerative gout and arthritis, and hardly able to earn his own keep. His very physical, medical, psychological, and economic conditions render him unfit and unable to do the things attributed to him by the complainant. Please see the attached medical certificates, . . ., among many other similar certificates touching on the same ailments. Respondent is also suffering from hypertension.23 On July 18, 1997, the investigating officer submitted his report, 24 recommending the indefinite suspension of Atty. Narag from the practice of law. The material portions of said report read as follows: Culled from the voluminous documentary and testimonial evidence submitted by the contending parties, two (2) issues are relevant for the disposition of the case, namely: a) Whether there was indeed a commission of alleged abandonment of respondent's own family and [whether he was] living with his paramour, Gina Espita; b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of respondent's Comment vis-avis his handwritten love letters, the due execution and contents of which, although he objected to their admissibility for being allegedly forgeries, were never denied by him on the witness stand much less presented and offered proof to support otherwise. Except for the testimonies of respondent's witnesses whose testimonies tend to depict the complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering everytime with streaks of jealousy, respondent did not present himself on the witness stand to testify and be cross-examined on his sworn comment; much less did he present his alleged

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paramour, Gina Espita, to disprove the adulterous relationship between him and their having begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Espita. Worse, respondent's denial that he is the father of the two is a ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Viewed from all the evidence presented, we find the respondent subject to disciplinary action as a member of the legal profession. 25 In its Resolution 26 issued on August 23, 1997, the IBP adopted and approved the investigating commissioner's recommendation for the indefinite suspension of the respondent. 27 Subsequently the complaint sought the disbarment of her husband in a Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and, in its Resolution dated November 30, 1997, denied respondent's Motion for Reconsideration. After a careful scrutiny of the records of the proceedings and the evidence presented by the parties, we find that the conduct of respondent warrants the imposition of the penalty of disbarment. The Code of Professional Responsibility provides: Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7 A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. Thus, good moral character is not only a condition precedent 28 to the practice of law, but a continuingqualification for all members of the bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. 29 Immoral conduct has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. 30 Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree 31 or committed under such scandalous or revolting circumstances as to shock the common sense of decency. 32 We explained in Barrientos vs. Daarol 33 that, "as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards." Respondent Narag is accused of gross immorality for abandoning his family in order to live with Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence. 34 Presented by complainant as witnesses, aside from herself. 35 were: Charlie Espita, 36 Magdalena Bautista, 37Bienvenido Eugenio, 38 Alice Carag, 39 Dr. Jervis B. Narag, 40 Dominador Narag, Jr., 41 and Nieves F. Reyes. 42 Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainant's charge against respondent in these categorical statements he gave to the investigating officer: Q Mr. Witness, do you know Atty. Narag? A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita. Q If Atty. Narag is here, can you point [to] him? A Yes, sir.

(Witness pointed to the respondent, Atty. Dominador Narag) Q Why do you know Atty. Narag? ATTY. NARAG: Already answered. He said I am the live-in partner. CONTINUATION OF THE DIRECT A Because he is the live-in partner of my sister and that they are now living together as husband and wife and that they already have two children, Aurelle Dominic and Kyle Dominador. xxx xxx xxx During cross-examination conducted by the respondent himself, Charlie Espita repeated his account that his sister Gina was living with the respondent, with whom she had two children: Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You claim that? A Yes, sir. Q Why do you say that? A Because at present you are living together as husband and wife and you have already two children and I know that is really an immoral act which you cannot just allow me to follow since my moral values don't allow me that my sister is living with a married man like you. Q How do you know that Atty. Narag is living with your sister? Did you see them in the house? A Yes, si[r]. xxx xxx xxx Q You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle Dominador, is it not? A Yes, sir. Q How do you know that they are the children of Atty. Narag? A Because you are staying together in that house and you have left your family. 44 In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing at the disbarment proceedings. 45 Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise: Q Mr. Witness, do you know the respondent in this case? A I know him very well, sir. Q Could you please tell us why do you know him? A Because he was always going to the house of my son-inlaw by the name of Charlie Espita. xxx xxx xxx Q Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? A At that time, he [was] residing in the house of Reynaldo Angubong, sir. Q And this is located where? A Centro Tamauini, Isabela, sir. Q And you specifically, categorically state under oath that this is the residence of Atty. Narag? A Yes, sir. xxx xxx xxx Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? A Yes, sir. 46 Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children Randy, Bong and Rowena that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent "went back to his woman," and that Atty. Narag had maltreated his wife. 47 On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these

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witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant, also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person. 48Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them. While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys. 49 This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a "violent husband-beater, vitriolic and unbending," and as an "insanely and pathologically jealous woman," whose only obsession was to "destroy, destroy and destroy" him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidence 50 and ten (10) witnesses. 51 We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children. Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife. Respondent may have provided well for his family they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance. 52 As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support. 53 Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with her paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their father's love. Respondent's son, Jervis B. Narag, showed his resentment towards his father's moral frailties in his testimony: Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although am a God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir.

xxx xxx xxx COMR. JOSE: I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. CONTINUATION. A With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime. Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. A Sort of, sir. Q You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? A Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love. 54 Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through: Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? A This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Q Will you please tell us specifically why you and your wife parted ways? A Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a wellknown family in our community. Q How about the effect on your brothers and sisters? Please tell us what are those. A Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother. xxx xxx xxx Q Why did your wife leave you? A The truth is because of the things that had happened in our family, Your Honor. Q In your wife's family? A In our family, sir. Q And what do you mean by that? A What meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a "puta" in provincial government, which my mother-in-law hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor. 55 Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordova 56: "The moral delinquency that affects the fitness of a member of the bar to continue

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as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage." In Toledo vs. Toledo, 57 the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan, 58 the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting, 59 "a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court." WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. G.R. No. L-29959 December 3, 1929 AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant, vs. RAFAEL VILLANUEVA, defendant-appellee. STREET, J.: This action was instituted on May 27, 1927, in the Court of First Instance of the City of Manila by Aurelia Dadivas de Villanueva against her husband, Rafael Villanueva, for the purpose of obtaining separate maintenance and custody of the two younger minor children, Guillermo and Sergio Villanueva, as well as a proper allowance for professional legal services rendered by the plaintiff's attorneys in this action, as well as costs. Upon hearing the cause the trial court absolved the defendant from the complaint and abrogated a prior order of the court for maintenance pendente lite, with costs against the plaintiff. From this judgment the plaintiff appealed. The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant, Rafael Villanueva, on July 16, 1905, in the City of Manila, where the pair have since resided. To them have been born three children, namely, Antonio, Guillermo, and Sergio, who were, at the time of the trial of this case in the lower court, aged respectively 18, 10 and 9 years. The grounds on which separate maintenance is sought infidelity and cruelty. With respect to the first of these charges the proof shows that during the period of about ten years prior to the institution of the action, the defendant was guilty of repeated acts of infidelity with four different women, and even after the action was begun, he is shown to have had illicit relations with still another, an incident which is incorporated in the case by means of the amended complaint. Thought at all times protesting against these irregularities in her husband's conduct, the plaintiff appears to have exhibited forbearance; and she long continued in marital relations with him with a view to keeping the family intact as well as with hope of retrieving him from his erring course. In the end, however, the incorrigible nature of the defendant in his relations with other women, coupled with a lack of consideration and even brutality towards the plaintiff, caused her to withdraw from the domestic hearth and to establish a separate abode for herself and two younger children. This final separation occurred on April 20, 1927, about one month before the present action was begun. The proof with respect to the charge of cruelty shows that the defendant has not infrequently treated the plaintiff roughly and that he has at times directed abusive words to her and challenged her to carry her troubles into court. The proof in support of this charge does not in our opinion establish a case for separate maintenance, without relation to the graver charge of conjugal infidelity; and if the case

depended, for its solution, upon cruelty alone, the case could doubtless be affirmed, in conformity with the doctrine stated in Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be unproved or insufficient. In that case, however, we were able to record the fact that neither of the spouses had at any time been guilty of conjugal infidelity, and that neither had, so far as the proof showed, even given just cause to the other to suspect illicit relations with any person. In the case before us repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if not an incurable offender against the sanctity of the marriage tie. This give the wife an undeniable right to relief. The law is not so unreasonable as to require a wife to live in marital relations with a husband whose incurable propensity towards other women makes common habitation with him unbearable. Deeply rooted instincts of human nature sanction the separation in such case, and the law is not so unreasonable as to require as acquiescence on the part of the injured party which is beyond the capacity of nature. In order to entitle a wife to maintain a separate home and to require separate maintenance from her husband it is not necessary that the husband should bring a concubine into the marital domicile. Perverse and illicit relations with women outside of the marital establishment are enough. As was said by Justice Moreland in Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relations and repudiate his duties thereunder. In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the opinion that the sum of P500 per month will suffice, this being in addition to the use which she makes for living quarters of a modest property belonging to the conjugal estate. During their marital life the spouses have acquired real estate which, at the time of the trial, was assessed at more than P85,000, and which at the same time was reasonably valued at more than P125,000. In addition to this the defendant appears to be now earning a substantial salary in commercial activities. The plaintiff is also entitled to an allowance for attorney's fees which we fix at P1,000 for services rendered in the trial court and the same amount for services rendered in this court. It appears that the two younger children are now living with the plaintiff, and her right to their custody will not be disturbed. While this litigation was pending in the lower court the defendant was required to pay the amount of P500 per month for maintenance of the plaintiff, under an interlocutory order of June 15, 1927. But these payments ceased when the appealed decision was promulgated on or about the end of March, 1928. The plaintiff in this case is therefore entitled to judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall be promulgated in this case, and from that date the defendant will be required to pay P500 per month for maintenance as already suggested. The plaintiff will also be awarded the sum of P720 in satisfaction of the amount paid out for the transcript necessary to this appeal. The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of the defendant the sum of P2,000 for attorney's fees, the sum of P720 for expenses of procuring transcript, and the sum of P500 per month, beginning April 1, 1928, until the promulgation of this decision, after which the date the defendant is ordered to pay to the plaintiff by way of maintenance, on or before the 10th day of each month, the sum of P500. So ordered, with costs against appellee. G.R. No. L-28904 December 29, 1928 CIPRIANA GARCIA, plaintiff-appellant, vs. ISABELO SANTIAGO and ALEJO SANTIAGO, defendantsOSTRAND, J.: This is an appeal but the plaintiff from a judgment of the Court of First Instance of Nueva Ecija dismissing the complaint.

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In her complaint the plaintiff alleges that she was married to the defendant Isabelo Santiago on April 8, 1910, and that from that date they lived together as husband and wife, until continued family dissentions compelled her to leave the conjugal dwelling on February 3, 1925; that defendant Alejo Santiago is a son of Isabelo Santiago by his first wife, and Prisca Aurelio is a daughter of plaintiff by her first husband; that said Alejo Santiago seduced Prisca Aurelio, and the latter gave birth to a child; and that the other defendant Isabelo Santiago, instead of seeing to the vindication of the honor of plaintiff's daughter by requiring his son to marry her, has refused to have anything to do with the matter, thus seemingly countenancing the illicit relations between them; that with a view to favoring materially the said Alejo Santiago and fostering his whims and caprices, defendant Isabelo Santiago has been conveying, and is attempting to convey, to said Alejo Santiago property belonging to their conjugal partnership, to the damage and prejudice of plaintiff's rights; that, among the property that defendant has conveyed or is attempting to convey Alejo Santiago, the lands specially described in the complaint are the most important ones, which, with others, had been acquired by plaintiff and defendant Isabelo Santiago during their married life with money belonging to the conjugal partnership, and with the products and fruits of the property of the conjugal partnership, or through the industry of the two; that said property produces annually around the neighborhood of 4,500 cavanes of palay at P4 per cavan; that by reason of the attitude of defendant Isabelo Santiago, respecting the illicit relations of his son and Prisca Aurelio, and his fraudulent acts conveying to said Alejo Santiago property belonging to the conjugal partnership, plaintiff and Isabelo Santiago have been several discussions and quarrels, which culminated in their separation of February 3, 1925, which separation became necessary in order to avoid personal violence; that notwithstanding plaintiff's repeated demands, defendants Isabelo Santiago has continually refused to provide for her support, and plaintiff could not live in their conjugal dwelling, because of illicit relations between Alejo Santiago and Prisca Aurelio, countenance by the other defendant Isabelo Santiago; that taking into consideration the actual financial conditions of the conjugal partnership, plaintiff is entitled to a monthly pension P500 pendente lite; and that in the meanwhile, the court should restrain defendant Isabelo Santiago from conveying of attempting to convey any property of the conjugal partnership; that defendant Isabelo has publicly maintained illicit relations with a woman by the name of Geronima Yap; and that by said immoral conduct and acts, defendant Isabelo Santiago has shown himself unfit to administer the property of the conjugal partnership, and the court should therefore order that its administration be placed in the hands of plaintiff. The defendants' answer to the complaint was a general denial. The appellant makes the following assignments of error: (1) The court erred in declaring her separation from the defendant Isabelo Santiago unjustified. (2) The court erred in dissolving the preliminary injunction and refusing to set aside the transfer of title made by Isabelo Santiago in favor of Alejo Santiago. (3) The court erred in not granting the plaintiff the right to administer the conjugal property. (4) The court erred in not granting the plaintiff the right to administer the conjugal property. (5) The court erred in not granting the other remedies prayed for in the complaint. The second and fourth assignments of error are entirely without merit. The plaintiff has failed to prove that the property conveyed to Alejo Santiago is community property; on the contrary, it is shown by documentary evidence that the land was acquitted by Isabelo Santiago previously to his marriage to the plaintiff. Neither can we find any sufficient reason for depriving the husband of his right to administer such conjugal property as may exist.1awphi1.net The first and third assignments of error deserved some consideration. It clearly appears that the spouses led a rather stormy life subsequent to the dishonor of the plaintiff's daughter, Prisca, and that husband,

according to the plaintiff's testimony, went so far as to order her to leave his house and threatened to illtreat her if she returned. It also appears that, aside from the quarrels, she had very unpleasant experiences in other respects. Her young daughter was, and still, under her care, and her assertion that her husband's son was the cause of her daughter's pregnancy is probably not unfounded. It requires no stretch of the imagination to conclude that to keep the two young people under the same roof with the opportunity to continue their illicit relations would create a very embarrassing situation for the girl's mother. Taking into consideration the facts stated, we do not think that the plaintiffs' separation from the husband in unjustified. Ordinarily, it is not the fault of one that two quarrel, and in all probability, the plaintiff is not free from blame, but she was virtually driven out of their home by her husband and threatened with violence if she should return. Under these circumstances, to compel the plaintiff to cohabit with her husband can only lead to further quarrels and would probably be unfortunate for both parties. The separation therefore seems necessary. As to the plaintiff's maintenance allowance it is the evident that the sum of P500 monthly is much too large and that an allowance of P50 per month is all that ought be granted at present. The fifth assignment of error relates principally to the plaintiff's prayer for an allowance of attorney's fees. Under the circumstances of the case, we do not think that the court below erred in refusing to grant such allowance. The judgment appealed from is therefore modified, and it is ordered that the defendant, Isabelo Santiago, pay to the plaintiff the sum of P50 per month for her maintenance and that such payments be made within the first ten days of each month. No costs will be allowed. So ordered. G.R. No. L-11086 March 29, 1958 PILAR ATILANO, plaintiff-appellee, vs. CHUA CHING BENG, defendant-appellant. FELIX, J.: The facts of this case as appearing on record and in the stipulation submitted by the parties and approved by the lower court, are as follows: Chua Ching Beng and Pilar Atilano were joined in lawful wedlock in Zamboanga City in May of 1951, after which marriage, the couple sailed for Manila and established their residence with the parents of the husband. In October of the same year, at the husband's initiative, they went to Zamboanga City to pay the parents of the wife a visit, and it seems that he was prevailed upon by the wife's parents to return to Manila leaving her behind, with the understanding that she would follow him later, which apparently she failed to do. On September 30, 1953, Pilar Atilano filed with the Court of First Instance of Zamboanga a complaint for support against her husband, alleging that they had been estranged and living separately since October, 1952, by reason of incessant marital bickerings and quarrels brought about by incompatibility of temperament and above all, by defendant's inability to provide for themselves a home separate from the latter's parents; that she was staying with her parents in Zamboanga City, without employment nor had she any property of her own. She therefore, prayed that as defendant was under legal obligation to support her, he be ordered to give her a monthly allowance, P200.00 from the date of the filing of the complaint. Defendant husband filed his answer contending that when they were still residing in Manila, their married life was characterized by harmony and understanding; that when they visited plaintiffs parents in Zamboanga in October 1952, he was prevailed upon by the latter to allow his wife to stay with them a while with the understanding that she would follow him later to Manila; that through insidious machinations, plaintiff's parents caused her to be alienated from him resulting in her refusal to return to Manila and live with her husband again; that defendant went back to Zamboanga City to fetch her, but through force and intimidation she was prevented by her parents from

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going with him; and that her parents also exerted undue pressure and influence upon his wife to file the complaint. Defendant further averred that while he was not evading his obligation to support his, he preferred to fulfill said duty by receiving and maintaining her in Manila; that as the husband, defendant had the right to fix the residence of his family, and he would even be willing to establish a conjugal dwelling in Manila separate from that of his parents if that was the plaintiff's desire. Thus, it was prayed that the complaint be dismissed. In the meantime, plaintiff filed a petition for alimony pendente lite premised on the same facts as, stated in her complaint, which was duly opposed by the defendant, and on May 3, 1954, based on stipulation of facts agreed upon by the parties, the court rendered judgment granting the wife a monthly allowance of P75 after finding that the wife's refusal to return to Manila was caused by her aversion to stay with the parents of her husband after she had experienced some previous in-law troubles; that her demand that they establish their home in Zamboanga could not be met by the husband because of the latter's job in Manila and due also to the husband's fear that his wife would always be under the influence and pressure of the latter's parents. No evidence was, however, adduced to support her allegation of incompatibility of temperament and marital quarrels, and upon receipt of the decision, defendant filed a petition electing to fulfill his; obligation as thus fixed by the trial court by receiving and maintaining plaintiff at his residence at Pasay City, which was, apart, from that of his parents, with the prayer that in the event, plaintiff would refuse to receive support under that set-up, that he be declared under, no compulsion to remit the allowance to her at Zamboanga City. As it was denied, defendant brought the matter to the Court of Appeals, but this Tribunal certified the case to Us for adjudication pursuant to the provisions of Section 17-6 of Republic Act No. 296. The only question presented for, our consideration by this appeal is whether a wife is entitled to received support from his husband where she refused to live with him on account of some misunderstanding she had with the husband's immediate relatives. It is clear to Us, and this is borne out by the findings, of the court a quo, that plaintiff wife, then 19 yeas of age, had the unfortunate experience of finding herself in some sort of domestic controversy, with her husband's immediate relatives in the opposite camp, which made her feel that living with them would already be intolerable and unbearable. Most likely, therefore, when they visited her parents, she recounted her plight to them and as the usual reaction of parents in matters of this nature, they picked up and championed the cause of their daughter which resulted in the estrangement of the young couple. Indeed disagreement among in-laws is a problem as old as the world itself, but despite this discouraging facet of married life there would always be in-laws as long there are marriages and the same vicious cycle would be repeated. In the case at bar, which is a clear illustration of this perennial domestic problem, We find that while the wife remains adamant on her stand to effect a separation in fact between her and her husband, the latter, has adopted a more conciliatory attitude by acknowledging his obligation to support her and even going to the extent of expressing his willingness to abide by her wish to have a conjugal dwelling apart from his parents, although it, appears that he may find it hard to make adequate provisions for their family, for he is allegedly receiving a salary of only 170 a month as salesman in a commercial firm. Defendant does not dispute that our civil Code imposes on the husband the responsibility of maintaining and supporting, his wife and the rest of the family (Art. 111). He insists, however, that under the, Civil Code, which provides: ART. 299. The person obliged to give support may, at his option, fulfill his obligation either by paying the allowance fixed, or by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in this case there is a moral or legal obstacle thereto; he is given the option to fulfill the said duty either by paying the allowance as fixed by the Court or receiving and maintaining the

person entitled thereto in his house; and that he elects to perform his obligation by the second means allowed him by law. The aforeqouted provision of the law is clear enough to require any further elucidation. In giving the obligor the option to fulfill his duty, it provides for only one occasion when the second alternative could not be availed of i.e., when there is a moral or legal obstacle thereto. It is true that plaintiff wife charged that they were estranged because of marital troubles and incessant bickering. While physical illtreatment may be ground to compel a husband to provide a separate maintenance for his wife ( Arroyo vs. Vasquez de Arroyo, 42 Phil., 54 ) said allegation was not proved during the trial. Instead, the lower court found that the root-cause of all their differences could be traced to disagreements common among relatives by affinity. Certainly, We do not think that misunderstanding with in-laws, who may be considered third parties to the marriage, is the moral or legal obstacle that the lawmakers contemplated in the drafting of said provision. The law, in giving the husband authority to fix the conjugal residence (Art. 110), does not prohibit him from establishing the same at the patriarchal home, nor is it against any recognized norm of morality, especially if he is not fully capable of meeting his obligation as such head of a family without the aid of his elders. But even granting arguendo that it might be "illegal" for him to persist on living with his parents over the objection of his wife, this argument becomes moot in view of defendant's manifestation that he is willing to establish a residence, separate from his parents, if plaintiff so desires. We are aware are that although the husband and the wife are, obliged to live together, observe mutual respect and fidelity and render mutual help and assistance ( Art. 109), and that the wife is entitled to be supported, our laws contain no provision compelling the wife to live with her husband where even without legal justification she establishes her residence apart from that provided for by the former, yet and in such event We would see no plausible reason why she should be allowed any support from the husband. It appearing that defendant husband availed of the option granted him by Article 299 of the Civil Code and there being no legal or moral hindrance to the exercise of the second alternative as elected by him, the answer to the question presented by this appeal is certainly obvious. Wherefore, the decision appealed from is hereby modified by giving the defendant husband Chua Ching Beng the option of supporting his wife at their conjugal dwelling apart from the home of the parents of the husband. Should plaintiff wife refuse to abide by the terms of this decision, then the defendant-appellant shall be considered relieved from the obligation of giving any support to his wife. Without pronouncement as to costs. It is so ordered. G.R. No. L-13114 November 25, 1960 ELENITA LEDESMA SILVA, ET AL., plaintiffs-appellees, vs. ESTHER PERALTA, defendant-appellee. REYES, J.B.L., J.: Direct appeal on both questions of fact and law from the decision of the Court of First Instance of Davao, the amount involved being more than P200,000.00. This action was commenced in the Court of First Instance of Davao on December 27, 1954 by Elenita Ledesma Silva, assisted by her husband Saturnino R. Silva, against Esther Peralta, seeking to enjoin the latter from representing herself as Mrs. Esther Peralta Silva; to order said defendant to pay Elenita Silva the sum of P250,000.00 as moral, nominal and exemplary damages, allegedly suffered by reason of such misrepresentation, plus P10,000.00 byway of the attorney's fees. Defendant's answer contains both specific denials and counterclaims for actual damages and fees due to harassment and moral damages caused by Silva's marital relation with defendant, without disclosing to her that he was married; and his subsequent refusal to acknowledge their offspring. After trial the lower court rendered judgment, the dispositive portion of which reads, to wit: EN SU VIRTUD, el jusgado dicta decision en esta causa contra de los demandantes, y a favor de la demanda;

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a) Ordena el sobreseimiento de la demanda; en autos por falta de meritos; b) Condena a los demandantes, mancumonada y solidariamente a pagar a la demanda la suma de P30,000.00 por los conceptos indicados; c) Condena a los demandantes a pagar la suma de P5,000.00 por honorarios de abogado; y d) Las costas del juicio. ASI SE ORDENA. The findings of the fact of the lower court may be briefly summarized as follows: At the outbreak of the war in 1941, the defendant Esther Peralta abandoned her studies as a student nurse at the Zamboanga General Hospital. In June of 1942, she resided with her sister, Mrs. Pedro Pia, in Maco, Tagum, Mabini Davao. Saturnino Silva, then an American citizen and an officer of the United States Army and married to one Prescilla Isabel of Australia, had been ordered to sent to the Philippines during the enemy occupation to help unite the guerillas in their fight for freedom. In 1944, he was the commanding officer of the 130th Regiment, under the overall command of Colonel Claro Laureta of the 107th Division, with general headquarters at Magugpo, Tagum, Davao. Sometime during the year 1944, Florence, a younger sister of the defendant, was accused of having collaborated with the enemy, and for this she was arrested, and accompanied by Esther, brought to Anibongan and later to the general headquarters at Magugpo for investigation that Silva first met Esther Florence was exonorated of the charges made against her and was ordered released, but with the advice that she should not return to Maco for the time being. Heeding such advice, Florence and her sister, appellee herein, went to live with the spouses Mr. and Mrs. Camilo Doctolero at Tipas, Magugpo, Davao. Silva started to frequent the house of the Doctoleros, and soon professed love for Esther. Having been made to believe that he was single, she accepted his marriage proposal; and the two were married on January 14, 1945 by one Father Cote on the occasion of a house blessing. No documents of marriage were prepared nor executed, allegedly because there were no available printed forms for the purpose. Hence, the lovers lived together as husband and wife. From the "marriage", a child, named Saturnino Silva, Jr., was born. On May 8, 1945, Silva sustained serious wounds in the battle of Ising, for which reason, he was transferred to Leyte, and later to the United States, he divorced Precilla Isabel and later, on May 9, 1948, contracted marriage with plaintiff Elenita Ledesma Silva. Upon his return to the Philippines, appellee Esther Peralta demanded support for their child, and, his refusal, instituted a suit for support in the Court of First Instance of Manila. Thereupon, the present action was filed against Esther, and another suit against her was instituted in Cotabato. Except for the statement that a marriage actually took place between Saturnino Silva and Esther Peralta; the evidence on record fully supports the foregoing findings of fact the lower court. No evidence was offered, other than the testimonies of the defendant herself and her counsel, Atty. Juan Quijano, to prove any such alleged marriage, although there is convincing proof that the defendant and Saturnino Silva, for a time, actually lived together as common-law husband and wife. But the witness' asseverations regarding the marriage, taken by themselves and considered with other circumstances appearing on the record, reveal too much uncertainty and incoherence as to be convincing. In the course of the pre-trial conference, Esther Peralta testified as follows: Court, (To the defendant) Do you have any evidence to show that you are married? DEFENDANT: That was during guerilla days and it was the justice of the peace of free Davao who

solemnized our marriage. (pp. 2-3, t.s.n.) (Emphasis supplied). On cross-examination, however, she declared. Q. Who was the justice of the peace who performed the marriage? A. It was Father Cote who asked us the questions and after that he said I pronounce you as husband and wife. The justice of the peace was also there (p. 411 t.s.n.) (Emphasis supplied). It is difficult to imagine how appellee could have easily forgotten or be confused as to who performed the alleged marriage when such fact, if true, heralded an important and memorable event in her life. But this is not all. In her written statement to the President of the Davao Local Council, Girl Scouts of the Philippines, when asked to explain on her use of the surnames Silvas, this witness-defendant never revealed any marriage contracted by herself and Silva. In fact, she declared Sometime later, he proposed marriage to me. As was natural, I told him to talk to my sisters and to the oldest relative of mine living in Magugpo. With all sincerity, he complied with my request and in due times my relatives gave their consent to our marriage. For some reason or another, and because I myself wished that our marriage take place after liberation which was then nearing marriage was delayed. But he pleaded to me that he needs me and that I join him and live with him in his quarters. After thinking the matter over, I agreed. I have nothing to be ashamed of for this because I was convinced of the sincerity of his request and of the fact that we were going to get married soon after liberation. We started living together as man and wife in December, 1944. As a result of our living together, I bore a child, named after him. He was baptized and registered as Saturnino Silva, Jr., and he has been carrying that name eversince. . . . (Exh. 22-C). Noteworthy also is the fact that while in her foregoing declarations she asserted that they started living together as man and wife since December, 1944, in her testimony in court, however, she attested as follows: Q. And it was also on that day (January 14, 1945) when you said you were married to Mr. Silva? A. Yes, sir. xxx xxx xxx Q. Do we understand from you now that it was the first time that you began to live together as husband and wife with Mr. Silva? A. Yes sir, because that was the time when we were legally married. (p. 411, t.s.n.) Again, Juan Quijano, presented as witness for the defendant, only testified to the following: xxx xxx xxx Q. And you affirm to this Court that plaintiff Saturnino R. Silva is lawfully wedded to the defendant Esther Peralta? A. Except for the fact of final formal marriage contract, for all intents and purposes they were legally married. xxx xxx xxx Q. Would you, Mr. Quijano, say that a man and women are legally married without the marriage contract having been signed by both contracting parties to the marriage, and the marriage solemnized? A. I would say, in my humble way of thinking, having in mind the provisions of the new civil code, that even without the signing of marriage contract by the parties, but if the parties have acted and believed that they are husband and wife, to my humble way of thinking, that is even better than signing marriage contract which the parties cannot agree.

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Q. Do I understand from you that between plaintiff Saturnino R. Silva and defendant Esther Peralta, no marriage was ever solemnized? xxx xxx xxx A. I did not say that there was marriage solemnized, but I was present when Silva asked the hands of Esther Peralta in marriage from her older sister. (t.s.n., pp. 223226, Exhibit A-1). The records also disclose that in a complaint for support in Civil Case No. 22816 of the Court of First Instance of Manila, filed by appellee "as his common-law-wife" (Exhs. "H" and "H-1"). In the affidavit (Exhibit "H-2")attached to the aforementioned complaint she affirmed under oath that she was "single". Appellee Esther Peralta, being a woman of sufficient schooling, must have known the significance of the terms thus employed. All the foregoing circumstances, coupled with the admitted fact that no marriage documents of any kind of prior to, during or after the marriage were ever prepared or executed by anybody, and that a vigorous denial of the supposed marriage was made by Saturnino Silva, the alleged consort, lead to the conclusion that no marriage had really taken place. In the face of the evidence, we cannot give value on the presumption of the marriage under section 69 (bb) of the Rules of Court, especially because, at the time of the alleged marriage on January 14, 1945, Saturnino Silva was still married to one Priscilla Isabel, an Australian national. In view of the non-existence of appellee's marriage with Saturnino Silva, and the latter's actual marriage to plaintiff Ledesma, it is not proper for Esther to continue representing herself as the wife of Saturnino. Article 370 of the Civil Code of the Philippines authorizes a married woman to use the surname of her husband; impliedly, it also excludes others from doing likewise. As to plaintiff Elenita Silva's claim for moral damages, the Court below has carefully analyzed the evidence in its decision and found (Rec. App., 47-49)that her claims of humiliation and distress are not satisfactorily proved; and we have found no ground to disturb such findings, considering the trial judge's ample opportunity to observe the witnesses at the stand. The plaintiff's distress upon learning from her lawyer that her husband had a child by the defendant, and was being sued for its support, confers no right to claim damages, in the absence of proof that the suit was reckless or malicious. Although Article 2216 of the Civil Code expressly provided that "no proof of pecuniary loss is necessary in order the moral, nominal,... or exemplary damages may be adjudicated", and the assessment thereof "is left to the discretion of the court, there should be a clear showing of the facts giving rise to such damages (Art 2217). This is particularly the case here, since it appears that appellee had acted in good faith, Silva having formerly introduced appellee to other persons as Mrs. Silva, and sent her letters thus addressed (Exh. 2), implying authority to used the disputed appellation prior to his subsequent marriage to Elenita Ledesma. Regarding the counterclaim for damages, the lower court awarded damages to the defendant appellee, stating in its decision; El jusgado estima en P15,000.00, los daos que la demandada ha sufridi porhaber perdido el puesto en la Davao Council, y por los sufrimientos moralque aquella ha sufrido, la suma de P15,000.00, mas la adicional de P5,000.00 por honorarios de abogado. This award is contested by appellants on the ground that defendant appellee's resignation from the Girl Scouts Davao Council was voluntary; according to her own letter Exhibit "S", she applied for an indefinite leave of absence to attend to a personal matter in Manila, which turned out to be the civil case that she had filed against Silva for the support for her child by him. Witness Felicidad Santos, asked about the reason why Esther Peralta left her position, testified: She resigned. She told me there was a case. In fact that was the time when she told me that there was a case which (she) filed in Manila and to attend that case it will interfere too

much of her activities as an Executive of the Davao Girl Scout." (t.s.n., pp. 245-246, Restauro). No great effort is needed to discern that Esther Peralta would never have agreed to live maritally with appellant Silva nor beget a child by him had not Silva concealed that he was already married; and in the case appellee Peralta would not have been compelled to relinguish her employment to attend to the litigation filed to obtain for the child the support that Silva refused. Wherefore, Esther's loss of employment is ultimately a result of Silva's deception and she should indemnified therefor. It is well to note in this connection, that Silva's act in hiding from appellee that he could not legally marry her, because, he allegedly have an Australian wife, was not mere negligence, but actual fraud (dolo) practiced upon the appellee. Consequently, he should stand liable for any and all damages arising therefrom, which include the expense of maintaining the offspring and the expenses of litigation to protect the child's right's and the loss of the mother's own earnings. This is a liability that flows even from Articles 1902 and 1107 (par. 2) of 1889 (Arts. 2176 and 2202 of the New Code). Art. 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage as done. Art. 1107. In case of fraud (dolo) the debtor shall be liable for all losses and damages which clearly arise from the failure to fulfill the obligation. Considering that the child was born on October 30, 1945, and has had to be supported exclusively by his mother since then up to the present, because the appellant Silva has refused to pay or even contribute to such support, and that appellee was earning P150.00 a month until she had to leave Davao to attend to her son's case, we can not say that P15,000.00 pecuniary damages awarded by the Court below are excessive or inequitable. The lower court's award of moral damages is, likewise, assailed as unjustified and not allowable under the law and jurisprudence governing before the effectivity of the New Civil Code of the Philippines. Granting arguendo the correctness of the proposition that, under the old law, no moral damages were allowable as a consequence of sexual relations outside of wedlock, still the evidence of record satisfies us that after the filing in May of 1954 of the first action by Esther Peralta against appellant Saturnino Silva, seeking support of their minor child, said appellant managed to avoid the services of summons, which were still unserved on him until the case at bar was tried, and an addition exercised improper pressure upon the appellee to make her withdraw the suit; that to this effect, appellant's brother and one Mrs. Misa, Girl Scouts executive of Iloilo, went to see Esther Peralta to press her to drop the case, warning her of untoward consequences otherwise; and when she refused, appellants, through counsel, filed against her the present action in Davao and another one in the Court of First Instance of Cotabato, charging her with conversion of Silva's properties in addition to bringing to the attention of the higher authorities of the Girl Scouts organization (wherein Esther Peralta was then employed) appellee's claim to be the wife of Col. Saturnino Silva, to whom "she must have been wedded in contemplation" (sic, Exh. 22), and unchaining a series of investigations that brought to light her condition as an unwedded mother, there is apparent here an obvious pattern of harassment, with a view to forcing appellee into abandoning the interests of her child. That such deliberate maneuvers caused the mother mental anguish and even physical suffering (she actually became ill as a result), can be easily understood and needs no special demonstration beyond her testimony to that effect. As this injury was inflicted upon the appellee from 1945 onwards, after the new Civil Code had become operative, in constitutes a justification for the award of moral damages (Art. 2217), claimed by appellee in the first counterclaim of her amended answer (Record on Appeal, pp. 26-27). The court below, as already noted, awarded her P15,000.00 as moral damages and P5,000.00 attorney's fees; and taking all the circumstances of record, we are not inclined to disturb

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the award. However, we agree with appellants that it was error for the court to sentence both appellants to the solidary payment of the damages. The liability therefor should be exclusively shouldered by the husband Saturnino Silva. As to the admission of the amended complaint, is discretionary in the trial court, and we do not see that the appellants were substantially prejudiced by the admission. In view of the forgoing, the judgement appealed from is modified and defendant appellee Esther Peralta is enjoined from representing herself, directly or indirectly to be the wife of appellant Saturnino R. Silva; and appellant Saturnino R. Silva is in turn ordered to pay Esther Peralta the amount of P30,000.00 by way of pecuniary and moral damages, plus P5,000.00 as attorney's fees. No costs. G.R. No. L-17014 August 11, 1921 MARIANO B. ARROYO, plaintiff-appellant, vs. DOLORES C. VASQUEZ DE ARROYO, defendant-appellee. STREET, J.: Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by marriage in the year 1910, and since that date, with a few short intervals of separation, they have lived together as man and wife in the city of Iloilo until July 4, 1920, when the wife went away from their common home with the intention of living thenceforth separate from her husband. After efforts had been made by the husband without avail to induce her to resume marital relations, this action was initiated by him to compel her to return to the matrimonial home and live with him as a dutiful wife. The defendant answered, admitting the fact of marriage, and that she had left her husband's home without his consent; but she averred by way of defense and cross-complaint that she had been compelled to leave by cruel treatment on the part of her husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for counsel fees and permanent separate maintenance. Upon hearing the cause the lower court gave judgment in favor of the defendant, authorizing her to live apart from her husband, granting her alimony at the rate of P400 per month, and directing that the plaintiff should pay to the defendant's attorney the sum of P1,000 for his services to defendant in the trial of the case. The plaintiff thereupon removed the case with the usual formalities by appeal to this court. The trial judge, upon consideration of the evidence before him, reached the conclusion that the husband was more to blame than his wife and that his continued ill-treatment of her furnished sufficient justification for her abandonment of the conjugal home and the permanent breaking off of marital relations with him. We have carefully examined and weighed every line of the proof, and are of the opinion that the conclusion stated is wholly untenable. The evidence shows that the wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree; and to his cause are chiefly traceable without a doubt the many miseries that have attended their married life. In view of the decision which we are to pronounce nothing will be said in this opinion which will make the resumption of married relations more difficult to them or serve as a reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the proof in this record shows neither of the spouses has at any time been guilty of conjugal infidelity, or has given just cause to the other to suspect illicit relations with any person. The tales of cruelty on the part of the husband towards the wife, which are the basis of the cross-action, are in our opinion no more than highly colored versions of personal wrangles in which the spouses have allowed themselves from time to time to become involved and would have little significance apart from the morbid condition exhibited by the wife. The judgment must therefore be recorded that the abandonment by her of the marital home was without sufficient justification in fact. In examining the legal questions involved, it will be found convenient to dispose first of the defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband to

maintain the wife is a duty universally recognized in civil society and is clearly expressed in articles 142 and 143 of the Civil code. The enforcement of this obligation by the wife against the husband is not conditioned upon the procurance of a divorce by her, nor even upon the existence of a cause for divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial abode and to live apart from her husband, she can, in this jurisdiction, compel him to make provision for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as of society at large require that the courts should move with caution in enforcing the duty to provide for the separate maintenance of the wife, for this step involves a recognition of the de facto separation of the spouses a state which is abnormal and fraught with grave danger to all concerned. From this consideration it follows that provision should not be made for separate maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has become impossible and separation necessary from the fault of the husband. In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the wife separate from the husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That imperative necessity is the only ground on which such a proceeding can be maintained also appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial divorces have never been procurable on any ground, the Supreme court fully recognizes the right of the wife to have provision for separate maintenance, where it is impossible for her to continue safely to cohabit with her husband; but the same court has more than once rejected the petition of the wife for separate maintenance where it appeared that the husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boydvs. Boyd, Har. Eq. [S. Car.], 144.) Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court in a case where cruelty on the part of the husband was relied upon to secure a divorce for the wife, made use of the following eloquent words, which are perhaps even more applicable in a proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be obtained except on the single ground of adultery and this, too, after the conviction of the guilty spouse in a criminal prosecution for that crime. Said he: That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, What is cruelty? . . . What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage-state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. . . . The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Every body must feel a wish to sever those who wish to

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live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to indulge the feelings, much less the first feelings of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. . . . To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity with that true wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individual, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know cannot shake off; they become good husbands and good wives form the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. . . . In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) In the light of the considerations stated, it is obvious that the crosscomplaint is not well founded and none of the relief sought therein can be granted. The same considerations that require the dismissal of the crosscomplaint conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his wife and that she is under an obligation, both moral and legal, to return to the common home and cohabit with him. The only question which here arises is as to the character and extent of the relief which may be properly conceded to him by judicial decree. The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory part of the complaint that he is entitled to a permanent mandatory injunction requiring the defendant to return to the conjugal home and live with him as a wife according to the precepts of law and morality. Of course if such a decree were entered, in unqualified terms, the defendant would be liable to attachment for contempt, in case she should refuse to obey it; and, so far as the present writer is aware, the question is raised for the first time in this jurisdiction whether it is competent for the court to make such an order. Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaled, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the restitution of the purely personal rights of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and the experience of these countries where the court of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it that court would make a mandatory decree, enforcible by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret

that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony. In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a peremptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.) In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional and absolute order for the return of the wife to the marital domicile, which is sought in the petitory part of the complaint; though he is, without doubt, entitled to a judicial declaration that his wife has presented herself without sufficient cause and that it is her duty to return. Therefore, reversing the judgment appealed from, in respect both to the original complaint and the cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the marital home without sufficient cause; and she is admonished that it is her duty to return. The plaintiff is absolved from the cross-complaint, without special pronouncement as to costs of either instance. So ordered. G.R. No. L-14874 September 30, 1060 ANTONIO PEREZ, in his own representation and as Guardian Ad litem of his son BENIGNO PEREZ Y TUASON, plaintiff-appellant, vs. ANGELA TUASON DE PEREZ, defendant and appellee. REYES, J.B.L., J.: Appeal from an order, dated October 27, 1958, of the Court of First Instance of Manila, dismissing its Civil Case No. 34626 for lack of jurisdiction. Plaintiff Antonio Perez, in his own representation and as guardian ad litem of his adoptive son, Benigno Perez y Tuason, initiated this civil case against Angela Tuason de Perez, the plaintiff's wife and Benigno's mother. The complaint states three causes of action. Under the first causes of action, it is averred that the defendant is squandering all of her estate on a young man by the name of Jose Antonio Campos Boloix, because of which Benigno Perez y Tuason, acting through his guardian ad litem, the plaintiff, prays that his mother, the defendant, be declared a prodigal and placed under appointed to administer her properties; and that during the pendency

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of this suit, a writ of injunction be issued to prevent the continued waste and disposition of her properties. In his second cause of action, the husband Antonio Perez, for and his own behalf, asserts that by virtue of the said alleged acts of prodigality committed by the defendant wife, the conjugal partnership of gain is being dissipated to the prejudice of both spouses; wherefore, he prays for a writ of injunction to restrain her from "dissolving and liquidating the conjugal partnership of gains." Finally, as third case of action, the plaintiff husband avers that, in addition to the aforementioned acts, the defendants had repeatedly advised him, as well as other persons, that she intends to marry Jose Campos Boloix and to have a child by him not withstanding her present marriage to the plaintiff, Antonio Perez; and that, if she could not have such a child, she was willing to have one by any other person, just to put plaintiff in a ridiculous and embarrassing position. Plaintiff, therefore, seeks to recover from her the total sum of P185,000.00 by way of damages and attorney's fees. On January 2, 1958, after a preliminary hearing, wherein plaintiff was heard ex parte, the Court of First Instance of Manila issued a preliminary injunction as prayed for in complaint. On March 19, 1958, the defendant appeared through counsel and prayed for the dismissal of the case on the ground of res judicata, and that the preliminary injunction be dissolve. Said motion was denied by the court a quo in its order of April 2, 1958. On April 16, 1958, the defendant filed a second motion to dismiss the case, this time on the ground that the Court of First Instance of Manila had no jurisdiction over the present proceedings, which, according to her, is vested under Republic Act No. 1401 with the Juvenile and Domestic Relations Court. While this last motion was being considered by the Court, a compromise agreement was arrived at and submitted for approval of the court on May 2, 1958. On May 31, 1958, before the Court could act, defendant filed an opposition to the approval of the compromise agreement, on the ground that (a) the same is contrary to law and (b) it was not freely or validly entered into by her representative. Without resolving this particular question, the lower court asked the parties to submit further memoranda on the sole issue of jurisdiction. After this was done, the trial court, by order of September 30, 1958, ordered the dismissal of the case on the ground that it lacked jurisdiction over the subject matter. Hence, plaintiffs Perez (father and son) appealed. Appellants assign three alleged errors in the order appealed from, as follows: The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over the causes of action alleged by Antonio Perez in the complaint. The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over the causes of action alleged by Benigno Perez y Tuason in the complaint. The trial court erred in holding that the Doctrine of Estoppel of Jurisdiction is not applicable in this country and erred further in failing to apply said doctrine to the present proceedings. We find the appeal to be untenable. Republic Act no. 1401, creating the Juvenile Domestic Relations Court of the City of Manila and defining its jurisdiction, provides, among other things, that: SEC. 38AProvision of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original jurisdiction to hear and decide the following cases after the effectivity of this Act: (b) Cases involving custody, guardianship, adoption, paternity and acknowledgment; xxx xxx xxx (d) proceedings brought under the provisions of Articles one hundred sixteen, two hundred twenty-five, two hundred fifty, two and three hundred thirty-one of the Civil Code. (Emphasis supplied.) While Article 116 of the Civil Code (referred to in subsection [d] above) states:.

When one of the spouses neglects his or her duties to the conjugal union or brings danger, dishonor or material injury upon the other, the injured party may apply to the court for relief. The court may counsel the offended party to comply with his or her duties, and take such measures as may be proper. (Emphasis supplied.)1awphl.nt It is easy to see that the first cause of action set forth in the complaint, wherein the minor Benigno Perez y Tuason, through his representative, ask his mother be placed under guardianship because of her alleged prodigality, and prays that a suitable person or institution be appointed to administer her properties, is exclusively cognizable by the Domestic Relations Court. The action falls squarely under the provisions of subsection (b), Section 38-A, R.A. 1401, above-quoted, as a "case involving . guardianship." No error was, therefore, committed in the appealed order in holding that this cause of action lay outside the jurisdiction of the Court of First Instance. The same thing can be said of the third cause of action wherein Antonio Perez seeks to recover damages and attorney's fees because his wife's act (avowing openly her intention to marry and have a child by Campos Boloix or if not, by anyone else) placed the plaintiff "in an embarrassing and contemptible position" (sic) and causing him "grave anxiety, wounded feelings, extreme humiliation." The case involves acts of a spouse that "brings . . . dishonor . . . upon the other (spouse)" under Article 116 of the Civil Code of the Philippines, and also lies within the jurisdiction of the Domestic Relations Court. The law (subsection (d), Sec. 38-A) expressly gives that court exclusive original jurisdiction over proceedings under the provisions of Article 116 of the Civil Code. More controversial is the issue involved in the second cause of action of the complaint, wherein Antonio Perez alleges that the prodigal acts of his wife result in the conjugal partnership of gains being dissipated to the prejudice of both spouses, and prays for a writ of injunction to restrain her from "dissolving and liquidating the conjugal partnership of gains." The Court of First Instance held that this cause of action is also one of those provided by Article 116 of the Civil Code, as a case where one spouse "bring danger . . . or material injury" upon the other, and, therefore, relief should be sought in the Court of Domestic Relations. We are inclined to think that "material injury" as used in Article 116 does not refer to patrimonial (economic) injury or damage, but to personal (i. e. physical or moral) injury to one of the spouses, since Article 116 lies in the chapter concerning personal relations between husband and wife. Nevertheless, the court below was correct in viewing this cause of action as primarily predicated on the grant of guardianship due to alleged prodigality of the wife, sine the allegation thereof is therein reiterated, and the remedy of injunction sought against further (i. e. future) acts of disposition (no annulment of her past transactions is demanded) must be necessarily based on the wife's being subject to guardianship. If the wife were not in any way incapacitated, the mere fact that the alienation of her paraphernal would deprive the conjugal partnership of the future fruits thereof would not give rise to a cause of action for injunction, since the conjugal partnership is only entitled to the net fruits of such property, after deducting administration expenses (People's Bank vs. Register of Deeds, 60 Phil., 167), and it is nowhere alleged that any such net fruits exist. More fundamental still, the wife's statutory power to alienate her paraphernal (Phil Civil Code, Article 140) necessarily implies power to alienate its future fruits, since the latter are mere accessory to the property itself. WHEREFORE, the second cause of action is inextricably woven into and cannot stand independently of the demand for guardianship of the wife, injunction being a mere incident thereof; so that like the first cause of action, the second also lay within the exclusive jurisdiction of the Court of Domestic Relations. The third alleged error charged against the Court below, that it should have that defendant was in estoppel to question the jurisdiction of the trial court is, on its face, without merit. Assuming

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for the sake of argument that defendant appellee was placed in such estoppel by merely executing the compromise and submitting it to the Court's approval, such estoppel could not operate against the Court. Regardless of the parties, the Court, at any time, could motu proprio inquire and determine whether it had jurisdiction over the subject matter of the action, and could dismiss the case (as it did) if it found that it had no power to act therein. The order appealed from is hereby affirmed. Costs against appellants.

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