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Panganiban September 9, 1933 of the Legislature to legalize adultery and concubinage.

They still remain crimes,


with the qualification that prosecution cannot be instituted if the offended party
JOSE R. PAÑGANIBAN, complainant, consent to the act or pardon the offender. This is a matter of future contingency
vs. and is not matter for legalization in wanton disregard of good morals. We hold the
ELIAS BORROMEO, respondent. contract to contain provisions contrary to law, morals and public order, and as a
consequence not judicially recognizable.
.
Passing to the second question, we think there can be no question as to the right of
MALCOLM, J.: the court to discipline an attorney who, in his capacity as notary public, has been
guilty of misconduct. To the office of notary public there is not attached such
importance under present conditions as under the Spanish administration. Even so,
These proceedings looking to the disbarment of the respondent attorney are before
the notary public exercise duties calling for carefulness and faithfulness. It is for the
us on the representations of the Solicitor-General that the respondent appear and
notary to inform himself of the facts to which he intends to certify, and to take part
show cause, if any he has, why he should not be proceeded against for professional
in no illegal enterprise. The notary public is usually a person who has been admitted
malpractice. The respondent admits that, in his capacity as notary public he
to the practice of law, and such, in the commingling of his duties as notary and
legalized the document which is the basis of the complaint against him, and that the
lawyer, must be held responsible for both. We are led to hold that a member of the
document contains provisions contrary to law, morals and good customs, but by
bar who performs an act as a notary public of a disgraceful or immoral character
way of defense disclaims any previous knowledge of the illegal character of the
may be held to account by the court even to the extent of disbarment. (See 2
document.
Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S.,
868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife,
re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko
subscribed a contract before the notary public Elias Borromeo, who was at that
[1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
time a regularly admitted member of the Philippine Bar. The contract in question
had been prepared by the municipal secretary of Naguilian, Isabela. Attorney
It now becomes necessary to pronounce sentence. As mitigating circumstances,
Borromeo cooperated in the execution of the document and had, at lease, some
there may be taken into consideration (1) that the attorney may not have realized
knowledge of its contents, although he may not have been fully informed because
the full purport of the document to which he took acknowledgment, (2) that no
of a difference in dialect. The contract in substance purported to formulate an
falsification of facts was attempted, and (3) that the commission of the respondent
agreement between the husband and the wife which permitted the husband to
as a notary public has been revoked. Accordingly, we are disposed in this case to
take unto himself a concubine and the wife to live in adulterous relationship with
exercise clemency and to confine our discipline of the respondent to severe
another man, without opposition from either one of them.
censure. So ordered.
Two questions are suggested by the record. The first concerns the points of
whether or not the contract sanctioned an illicit and immoral purpose. The second
concerns the point, on the supposition that the contract did sanction an illicit and
immoral purpose, of whether a lawyer may be disciplined for misconduct as a
notary public.

The contract of the spouses, it will be recalled, was executed at a time when the
Spanish Penal Code, as modified by Act No. 1773 was in force. Conceding, however,
that the more liberal provisions of the Revised Penal Code should be given
application, it is herein provided that the consent or pardon given by the offended
party constitutes a bar to prosecution for adultery or concubinage. In this instance,
if the spouses should retain their present frame of mind, no prosecution of either
one by the other could be expected. Nevertheless, we think it far from the purpose
G.R. No. L-38672 1 October 27, 1933 We, Ramon Palattao and Rosario Tagayun, man and wife, enter into the
following agreement:
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. That in view of the fact that, I, Ramon Palattao, the man, cannot stay and
ALFONSO GUINUCUD and ROSARIO TAGAYUN, defendants-appellants. live with the parent of Rosario Tagayun in barrio Lattu; and that in view of
the fact that I, Rosario Tagayun, the woman, cannot live with the parent of
BUTTE, J.: Ramon Palattao in barrio Auitan;

This is an appeal from a decision of the Court of First Instance of Isabela, convicting We mutually agree by this present to separate from each other and that
the appellants of the crime of adultery. The prosecution was instituted by the Ramon Palattao can and I gave him the privilege to love or marry another
complaint of the husband of Rosario Tagayun, named Ramon Palattao. woman; so also Rosario Tagayun can accept or be married to another man;

Upon arraignment, the accused pleaded not guilty but on the hearing, admitted the We also agree that, as to the baby Leslie who is our child, it is our right to
facts alleged in the information but presented evidence to prove that Ramon have him by turn and we are bound to support him jointly;
Palattao consented to the adultery, which fact, if established, bars any prosecution
under article 344 of the Revised Penal Code. The pertinent paragraphs of said Finally we state also that each of us has to find his or her means of
article are as follows: existence and neither of us has the right to bother the other as to his or
her livelihood;
ART. 344. Prosecution of all crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. — The crimes of adultery and In witness whereof we sign at barrio Lattu in the municipality of San Pablo,
concubinage shall not be prosecuted except upon a complaint filed by the province of Isabela, this 3rd day of July, 1930.
offended spouse.
(Sgd.) ROSARIO TAGAYUN (Sgd.) RAMON PALATTAO
The offended party cannot institute criminal prosecution without including
both the guilty parties, if they are both alive, nor, in any case, if he shall At the time said Exhibit 1 was signed, Rosario and her child were living with
have consented or pardoned the offenders. Rosario's mother and there is no evidence of any misconduct on her part at that
time or that she contemplated any illicit relations with any other man. On the other
It appears from the evidence in this case that the husband, Ramon Palattao, in April hand, we are convinced from the conduct of the husband Ramon that he solicited
1930, abandoned and deserted his wife, Rosario Tagayun, then aged 21, and their the signature of Rosario to said agreement in his own interest and because he
child. After that abandonment, Rosario lived with her mother but made repeated desired to have "the privilege to love or to marry another woman". At the trial of
efforts to win back her husband. She went to the justice of the peace of San Pablo, this case, he denied that the signature in Exhibit 1 was his signature. This was a
Mariano Castañeda, who testified that he called Ramon and endeavored to palpable falsehood as a comparison with his signatures on other documents in the
persuade Ramon to take his wife back, but Ramon refused. Thereafter, at the files plainly shows. He even had the effrontery to deny his signature to a motion for
request of the mother of Rosario, the barrio lieutenant, Mariano Tumaliuan, took continuance which he filed in the justice of the peace court.
Rosario and her child to Ramon's house but she was refused admission by the said
Ramon. Thereafter, on July 3, 1930, the husband, Ramon, induced his wife, Rosario, He admitted on cross-examination that, for more than a year before he filed the
to sign the document which appears in the record as Exhibit 1. He brought the complaint in this case, he knew that his wife Rosario and her coaccused Alfonso
document in duplicate to the house of Rosario's mother where both of them signed were living together in the same house. During all that time he took no action
both copies, he keeping the original and leaving her the carbon copy. Exhibit 1 is as whatever to vindicate the honor or his name or to resent the open offense to the
follows: integrity of his home, doubtless, because he felt bound by the alleged agreement to
give his consent to Rosario's conduct or because he expected her to reciprocate. As
COUPLE'S AGREEMENT this court stated in the case of People vs. Sensano and Ramos (p. 73, ante), he was
"assuming a mere pose when he signed the complaint as the 'offended spouse,"
and his conduct as shown by the evidence in this case warrants the inference that querella, pasado el cual, negariamos al marido el derecho de producirla. El
he consented to, and acquiesced in, the adulterous relations existing between the marido que tiene conocimiento de la violacion de la fe conyugal, y deja
accused, and he is, therefore, not authorized by law to institute this criminal pasar cuatro o sees meses sin acudir a los tribunales demandado
proceeding. reparacion de las injurias, debe suponerse que tacitamente las ha
perdonado. Espacio ha tenido suficiente, cuando la herida chorreaba
The agreement above referred to (Exhibit 1) is void in law. (Cf. People vs. Tolentino, sangre, para ejercer el derecho que la ley le daba; si no lo hizo en un
G.R. No. 34145, promulgated October 22, 1931.) 2 termino prudencial, no es justo que indefinidamente tenga a la mujer bajo
la amenaza de un castigo vergonzoso que cohiba perpetuamente su
Whilst the agreement, Exhibit 1, is void in law, it is nevertheless competent espiritu, impidiendo su arrepentimiento y dificultando la conciliacion
evidence to explain the husband's inaction after he knew of his wife's living with the conyugal, y con ella la paz de la familia. (Page 49, Groizard's Codigo Penal,
coaccused and to show that he acquiesced in her conduct. The expression "if he Vol. 5.)
shall have consented" in article 344 of the Revised Penal Code, which bars the
"offended" husband from instituting a prosecution, has no reference to any consent The judgment below is reversed with costs de oficio.
or agreement prior to the commission of the offense but relates to an express or
implied acquiescence subsequent to the offense. This consent or acquiescence need Street, Malcolm, Abad Santos, and Vickers, JJ., concur.
not be express but may be inferred from the conduct or the long continued inaction
of the husband after learning of the offense. The husband who is truly "offended",
within the meaning of the statute, will not sit passively by and allow his name and
the honor of his family to be flagrantly sullied by the notorious adultery of his wife.
Apart from that, the fact that he abandoned and deserted his wife and child, in
spite of all her efforts to maintain their home intact, shows a callous indifference to
every moral duty imposed upon him as her husband and the father of their child. In
this case, the very thing happened which he might have foreseen and probably did
foresee when he abandoned his wife and deceived her into believing that she was
free when she signed the said agreement a year and a half before the offense was
committed. His consent to the offense before it was committed was void but his
tolerance of and acquiescence in the offense after it was committed demonstrate
that it is a hypocritical pretense for him now to appear in court as the "offended
party" and bar his right to prosecute his wife.1awphil.net

Very apt in this connection are the following paragraphs in Groizard's commentaries
on similar provisions in the Codigo Penal of Spain:

A su vez, transigir un marido con su deshonor, consentir el adulterio y


luego ir a los tribunales querellandose de la mujer y de su complice, es ser
dos veces indigno: la primera, al conocer y no vindicar la ofensa recibida, y
la segunda, haciendola publica, con daño de toda la familia, despues de
haber demostrado que personalmente le afectaba en poco. (Page 48,
Groizard's Codigo Penal, Vol. 5.)

A las limitaciones de que acabamos de hablar, nosotros añadiriamos otra


que encontramos establecida en algunos codigos que en las concordancias
figuran. Fijariamos un plazo, mas o menos largo, para la presentacion de la
G.R. No. 82606 December 18, 1992 conjugal property was dismissed for lack of a cause of action and on the ground that
separation by agreement was not covered by Article 178 of the Civil Code.
PRIMA PARTOSA-JO, petitioner,
vs. When their motions for reconsideration were denied, both parties came to this
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and Court for relief. The private respondent's petition for review on certiorari was
CONSING), respondents. dismissed for tardiness in our resolution dated February 17, 1988, where we also
affirmed the legality of the marriage between Jose and Prima and the obligation of
the former to support her and her daughter.

CRUZ, J.: This petition deals only with the complaint for judicial separation of conjugal
property.
The herein private respondent, Jose Jo, admits to having cohabited with three
women and fathered fifteen children. The first of these women, the herein It is here submitted that the Court of Appeals erred in holding that: a) the judicial
petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The separation of conjugal property sought was not allowed under Articles 175, 178 and
other women and their respective offspring are not parties of these case. 191 of the Civil Code; and b) no such separation was decreed by the trial court in
the dispositive portion of its decision.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal
property, docketed as Civil Case No. 51, in addition to an earlier action for support, The private respondent contends that the decision of the trial court can longer be
also against him and docketed as Civil Case No. 36, in the Regional Trial Court of reviewed at this time because it has a long since become final and executory. As the
Negros Oriental, Branch 35. decretal portion clearly made no disposition of Civil Case No. 51, that case should
be considered impliedly dismissed. The petitioner should have called the attention
The two cases were consolidated and tried jointly. On November 29, 1983, Judge of the trial court to the omission so that the proper rectification could be made on
German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which time. Not having done so, she is now concluded by the said decision, which can no
read: longer be corrected at this late hour.

WHEREFORE, in view of all the foregoing arguments and considerations, this court We deal first with the second ground.
hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho
Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded While admitting that no mention was made of Civil Case No. 51 in the dispositive
wife and the defendant is hereby ordered to give a monthly support of P500.00 to portion of the decision of the trial court, the petitioner argues that a disposition of
the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and the case was nonetheless made in the penultimate paragraph of the decision
to give to the plaintiff the amount of P40,000.00 for the construction of the house reading as follows:
in Zamboanguita, Negros Oriental where she may live separately from the
defendant being entitled under the law to separate maintenance being the It is, therefore, hereby ordered that all properties in question are considered
innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of properties of Jose Jo, the defendant in this case, subject to separation of property
support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of under Article 178, third paragraph of the Civil Code, which is subject of separate
attorney's fees. proceedings as enunciated herein.

As will be noticed, there was a definite disposition of the complaint for support but The petitioner says she believed this to be disposition enough and so did not feel it
none of the complaint for judicial separation of conjugal property. was necessary for her to appeal, particularly since the order embodied in that
paragraph was in her favor. It was only when the respondent court observed that
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the there was no dispositive portion regarding that case and so ordered its dismissal
trial court in the complaint for support. 1 The complaint for judicial separation of that she found it necessary to come to this Court for relief.
The petitioner has a point. the only remedy availabe to the petitioner was legal separation under Article 175 of
the Civil Code, 4 by virtue of which the conjugal partnership of property would be
The dispositive portion of the decision in question was incomplete insofar as it terminated.
carried no ruling on the complaint for judicial separation of conjugal property
although it was extensively discussed in the body of the decision. The drafting of the The petitioner contends that the respondent court has misinterpreted Articles 175,
decision was indeed not exactly careful. The petitioner's counsel, noting this, should 178 and 191 of the Civil Code. She submits that the agreement between her and the
have taken immediate steps for the rectification for the omission so that the ruling private respondent was for her to temporarily live with her parents during the initial
expressed in the text of the decision could have been embodied in the decretal period of her pregnancy and for him to visit and support her. They never agreed to
portion. Such alertness could have avoided this litigation on a purely technical issue. separate permanently. And even if they did, this arrangement was repudiated and
ended in 1942, when she returned to him at Dumaguete City and he refused to
Nevertheless, the technicality invoked in this case should not be allowed to prevail accept her.
over considerations of substantive justive. After all, the technical defect is not
insuperable. We have said time and again that where there is an ambiguity caused The petitioner invokes Article 178 (3) of the Civil Code, which reads:
by an omission or a mistake in the dispositive portion of the decision, this Court
may clarify such an ambiguity by an amendment even after the judgment have Art. 178. The separation in fact between husband and wife without judicial
become final. 2 In doing so, the Court may resort to the pleading filed by the parties approval, shall not affect the conjugal partnership, except that:
and the findings of fact and the conclusions of law expressed in the text or body of
the decision. 3 (3) If the husband has abandoned the wife without just cause for at least one year,
she may petition the court for a receivership, or administration by her of the
The trial court made definite findings on the complaint for judicial separation of conjugal partnership property or separation of property.
conjugal property, holding that the petitioner and the private respondent were
legally married and that the properties mentioned by the petitioner were acquired The above-quoted provision has been superseded by Article 128 of the Family Code,
by Jo during their marriage although they were registered in the name of the which states:
apparent dummy.
Art. 128. If a spouse without just cause abandons the other or fails to comply with
There is no question therefore that the penultimate paragraph of the decision of his or her obligations to the family, the aggrieved spouse may petition the court for
the trial court was a ruling based upon such findings and so should have been receivership, for judicial separation of property, of for authority to be the sole
embodied in the dispositive portion. The respondent court should have made the administrator of the conjugal partnership property, subject to such precautionary
necessary modification instead of dismissing Civil Case No. 51 and thus upholding conditions as the court may impose.
mere form over substance.
The obligations to the family mentioned in the preceding paragraph refer to martial,
In the interest of substantive justice, and to expedite these proceedings, we hereby parental or property relations.
make such modification.
A spouse is deemed to have abondoned the other when he or she has left the
And now to the merits of Civil Case No. 51. conjugal dwelling without any intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has failed within the same period
The Court of Appeals dismissed the complaint on the ground that the separation of to give any information as to his or her whereabouts shall be prima facie presumed
the parties was due to their agreement and not because of abondonment. The to have no intention of returning to the conjugal dwelling.
respondent court relied mainly on the testimony of the petitioner, who declared
under oath that she left Dumaguete City, where she and Jo were living together Under the this provision, the aggrieved spouse may petition for judicial separation
"because that was our agreement." It held that a agreement to live separately on either of these grounds:
without just cause was void under Article 221 of the Civil Code and could not
sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that
1. Abondonment by a spouse of the other without just cause; and The amendments introduced in the Family Code are applicable to the case before us
although they became effective only on August 3, 1988. As we held in Ramirez v.
2. Failure of one spouse to comply with his or her obligations to the family without Court of Appeals: 7
just cause, even if she said spouse does not leave the other spouse.
The greater weight of authority is inclined to the view that an appellate court, in
Abandonment implies a departure by one spouse with the avowed intent never to reviewing a judgment on appeal, will dispose of a question according to the law
return, followed by prolonged absence without just cause, and without in the prevailing at the term of such disposition, and not according to the law prevailing at
meantime providing in the least for one's family although able to do so. 5 There the time of rendition of the appealed judgement. The court will therefore reverse a
must be absolute cessation of marital relations, duties and rights, with the intention judgement which was correct at the time it was originally rendered where, by
of perpetual separation. 6 This idea is clearly expressed in the above-quoted statute, there has been an intermediate change in the law which renders such
provision, which states that "a spouse is deemed to have abandoned the other judgement erroneous at the time the case was finally disposed of on appeal.
when he or she has left the conjugal dwelling without any intention of returning."
The order of judicial separation of the properties in question is based on the finding
The record shows that as early as 1942, the private respondent had already rejected of both the trial and respondent courts that the private respondent is indeed their
the petitioner, whom he denied admission to their conjugal home in Dumaguete real owner. It is these properties that should now be divided between him and the
City when she returned from Zamboanguita. The fact that she was not accepted by petitioner, on the assumption that they were acquired during coverture and so
Jo demonstrates all too clearly that he had no intention of resuming their conjugal belong to the spouses half and half. As the private respondent is a Chinese citizen,
relationship. Moreover, beginning 1968 until the determination by this Court of the the division must include such properties properly belonging to the conjugal
action for support in 1988, the private respondent refused to give financial support partnership as may have been registered in the name of other persons in violation
to the petitioner. The physical separation of the parties, coupled with the refusal by of the Anti-Dummy Law.
the private respondent to give support to the petitioner, sufficed to constitute
abandonment as a ground for the judicial separation of their conjugal property. The past has caught up with the private respondent. After his extramarital flings
and a succession of illegitimate children, he must now make an accounting to his
In addition, the petitioner may also invoke the second ground allowed by Article lawful wife of the properties he denied her despite his promise to their of his
128, for the fact is that he has failed without just cause to comply with his eternal love and care.
obligations to the family as husband or parent. Apart form refusing to admit his
lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to WHEREFORE, the petition is GRANTED and the assailed decision of the respondent
cohabiting with other women and siring many children by them. It was his refusal to court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the
provide for the petitioner and their daughter that prompted her to file the actions petitioner herein, and the conjugal property of the petitioner and the private
against him for support and later for separation of the conjugal property, in which respondent is hereby ordered divided between them, share and share alike. This
actions, significantly, he even denied being married to her. The private respondent division shall be implemented by the trial court after determination of all the
has not established any just cause for his refusal to comply with his obligations to properties pertaining to the said conjugal partnership, including those that may
his wife as dutiful husband. have been illegally registered in the name of the persons.

Their separation thus falls also squarely under Article 135 of the Family Code, SO ORDERED.
providing as follows:

Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property:

(6) That at the time of the petition, the spouse have been separated in fact for at
least one year and reconciliation is highly improbable.
G.R. No. L-19565 January 30, 1968 the defendant has been the president since its organization in 1959 in Manila with a
paid-up capital of P50,000, P10,000 of which was contributed by him. This
ESTRELLA DE LA CRUZ, plaintiff-appellee, corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres
vs. Subdivision and the Green Valley Subdivision in Las Piñas, Rizal, and a lot and
SEVERINO DE LA CRUZ, defendant-appellant. building located at M. H. del Pilar, Manila purchased for P285,000, an amount
borrowed from the Manufacturer's Bank and Trust Company.
Estacion and Paltriguera for plaintiff-appellee.
Manuel O. Soriano and Pio G. Villoso for defendant-appellant. The spouses are indebted to the Philippine National Bank and the Development
Bank of the Philippines for loans obtained, to secure which they mortgaged the
CASTRO, J.: Philippine Texboard Factory, the Silay hacienda, their conjugal house, and all their
parcels of land located in Bacolod City.
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of
First Instance of Negros Occidental, alleging in essence that her husband, the The essential issues of fact may be gleaned from the nine errors the defendant
defendant Severino de la Cruz, had not only abandoned her but as well was imputes to the court a quo, namely,
mismanaging their conjugal partnership properties, and praying for (1) separation
of property, (2) monthly support of P2,500 during the pendency of the action, and 1. In finding that the only visit, from May 15, 1955 to the rendition of the
(3) payment of P20,000 as attorney's fees, and costs. decision, made by the defendant to the conjugal abode to see his wife was
on June 15, 1955;
The court a quo forthwith issued an order allowing the plaintiff the amount prayed
for as alimony pendente lite, which however, upon defendant's motion, was 2. In finding that the letter exh. 3 was written by one Nenita Hernandez
reduced to P2,000. and that she and the defendant are living as husband and wife;

On June 1, 1961 the trial court rendered judgment ordering separation and division 3. In finding that since 1951 the relations between the plaintiff and the
of the conjugal assets, and directing the defendant to pay to the plaintiff the sum of defendant were far from cordial, and that it was from 1948 that the former
P20,000 as attorney's fees, with legal interest from the date of the original has been receiving an allowance from the latter;
complaint, that is, from July 22, 1958, until fully paid, plus costs. From this judgment
the defendant appealed to the Court of Appeals, which certified the case to us, "it 4. In finding that the defendant has abandoned the plaintiff;
appearing that the total value of the conjugal assets is over P500,000".
5. In finding that the defendant since 1956 has not discussed with his wife
The basic facts are not controverted. The plaintiff and the defendant were married the business activities of the partnership, and that this silence constituted
in Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia "abuse of administration of the conjugal partnerships";
(1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948).
During their coverture they acquired seven parcels of land of the Bacolod Cadastre, 6. In declaring that the defendant mortgaged the conjugal assets without
all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at the knowledge of the plaintiff and thru false pretences to which the latter
P43,580. All these parcels are registered in their names. The hacienda in Silay was prey;
yielded for the year 1957 a net profit of P3,390.49.
7. In allowing the plaintiff, on the one hand, to testify on facts not actually
They are also engaged in varied business ventures with fixed assets valued as of known by her, and, on the other hand, in not allowing the defendant to
December 31, 1956 at P496,006.92, from which they obtained for that year a net establish his special defenses;
profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal
business of the spouses, was P90,454.48 for the year 1957. As of December 31, 8. In ordering separation of the conjugal partnership properties; and
1959, the total assets of the various enterprises of the conjugal partnership were
valued at P1,021,407.68, not including those of the Top Service Inc., of which firm
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the The defendant, for his part, denied having abandoned his wife and children, but
amount of P20,000, with interest at the legal rate.1äwphï1.ñët admitted that in 1957, or a year before the filing of the action, he started to live
separately from his wife. When he transferred his living quarters to his office in
Two issues of law as well emerge, requiring resolution petition: (1) Did the Mandalagan, Bacolod City, his intention was not, as it never has been, to abandon
separation of the defendant from the plaintiff constitute abandonment in law that his wife and children, but only to teach her a lesson as she was quarrelsome and
would justify a separation of the conjugal partnership properties? (2) Was the extremely jealous of every woman. He decided to live apart from his wife
defendant's failure and/or refusal to inform the plaintiff of the state of their temporarily because at home he could not concentrate on his work as she always
business enterprises such an abuse of his powers of administration of the conjugal quarreled with him, while in Mandalagan he could pass the nights in peace. Since
partnership as to warrant a division of the matrimonial assets? 1953 he stayed in Manila for some duration of time to manage their expanding
business and look for market outlets for their texboard products. Even the plaintiff
The plaintiff's evidence may be summarized briefly. The defendant started living in admitted in both her original and amended complaints that "sometime in 1953,
Manila in 1955, although he occasionally returned to Bacolod City, sleeping in his because of the expanding business of the herein parties, the defendant established
office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal an office in the City of Manila, wherein some of the goods, effects and merchandise
home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept in the manufactured or produced in the business enterprises of the parties were sold or
conjugal dwelling, although in the said year he paid short visits during which they disposed of". From the time he started living separately in Mandalagan up to the
engaged in brief conversations. After 1955 up to the time of the trial, the defendant filing of the complaint, the plaintiff herself furnished him food and took care of his
had never visited the conjugal abode, and when he was in Bacolod, she was denied laundry. This latter declaration was not rebutted by the plaintiff.
communication with him. He has abandoned her and their children, to live in
Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the The defendant, with vehemence, denied that he has abandoned his wife and family,
existence of illicit relations between her husband and Nenita. This suspicion was averring that he has never failed, even for a single month, to give them financial
confirmed in 1951 when she found an unsigned note in a pocket of one of her support, as witnessed by the plaintiff's admission in her original and amended
husband's polo shirt which was written by Nenita and in which she asked "Bering" complaints as well as in open court that during the entire period of their
to meet her near the church. She confronted her husband who forthwith tore the estrangement, he was giving her around P500 a month for support. In point of fact,
note even as he admitted his amorous liaison with Nenita. He then allayed her fears his wife and children continued to draw allowances from his office of a total ranging
by vowing to forsake his mistress. Subsequently, in November 1951, she found in from P1,200 to P1,500 a month. He financed the education of their children, two of
the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the whom were studying in Manila at the time of the trial and were not living with the
sender (who signed as "D") apologized for her conduct, and expressed the hope plaintiff. While in Bacolod City, he never failed to visit his family, particularly the
that the addressee ("Darling") could join her in Baguio as she was alone in the Patria children. His wife was always in bad need of money because she played mahjong,
Inn and lonely in "a place for honeymooners". Immediately after her husband an accusation which she did not traverse, explaining that she played mahjong to
departed for Manila the following morning, the plaintiff enplaned for Baguio, where entertain herself and forget the infidelities of her husband.
she learned that Nenita had actually stayed at the Patria Inn, but had already left
for Manila before her arrival. Later she met her husband in the house of a relative in Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated
Manila from whence they proceeded to the Avenue Hotel where she again the testimony of the defendant on the matter of the support the latter gave to his
confronted him about Nenita. He denied having further relations with this woman. family, by declaring in court that since the start of his employment in 1950 as
assistant general manager, the plaintiff has been drawing an allowance of P1,000 to
Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in P1,500 monthly, which amount was given personally by the defendant or, in his
the home of the spouses from May 15, 1955 to August 15, 1958, and that during absence, by the witness himself.
the entire period of her employment she saw the defendant in the place only once.
This declaration is contradicted, however, by the plaintiff herself who testified that The defendant denied that he ever maintained a mistress in Manila. He came to
in 1955 the defendant "used to have a short visit there," which statement implies know Nenita Hernandez when she was barely 12 years old, but had lost track of her
more than one visit. thereafter. His constant presence in Manila was required by the pressing demands
of an expanding business. He denied having destroyed the alleged note which the
plaintiff claimed to have come from Nenita, nor having seen, previous to the trial,
the letter exh. C. The allegation of his wife that he had a concubine is based on the petition of the wife, may provide for a receivership, or administration by the
mere suspicion. He had always been faithful to his wife, and not for a single wife, or separation of property". It behooves us, therefore, to inquire, in the case at
instance had he been caught or surprised by her with another woman. bar, whether there has been abandonment, in the legal sense, by the defendant of
the plaintiff, and/or whether the defendant has abused his powers of
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership property, so as to justify the plaintiff's
administration of the conjugal partnership, the plaintiff declared that the defendant plea for separation of property.
refused and failed to inform her of the progress of their various business concerns.
Although she did not allege, much less prove, that her husband had dissipated the We have made a searching scrutiny of the record, and it is our considered view that
conjugal properties, she averred nevertheless that her husband might squander and the defendant is not guilty of abandonment of his wife, nor of such abuse of his
dispose of the conjugal assets in favor of his concubine. Hence, the urgency of powers of administration of the conjugal partnership, as to warrant division of the
separation of property. conjugal assets.

The defendant's answer to the charge of mismanagement is that he has applied his The extraordinary remedies afforded to the wife by article 178 when she has been
industry, channeled his ingenuity, and devoted his time, to the management, abandoned by the husband for at least one year are the same as those granted to
maintenance and expansion of their business concerns, even as his wife threw her by article 167 in case of abuse of the powers of administration by the husband.
money away at the mahjong tables. Tangible proof of his endeavors is that from a To entitle her to any of these remedies, under article 178, there must be real
single cargo truck which he himself drove at the time of their marriage, he had built abandonment, and not mere separation. 1 The abandonment must not only be
up one business after another, the Speedway Trucking Service, the Negros Shipping physical estrangement but also amount to financial and moral desertion.
Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous
other business enterprises worth over a million pesos; that all that the spouses now Although an all-embracing definition of the term "abandonment " is yet to be
own have been acquired through his diligence, intelligence and industry; that he has spelled out in explicit words, we nevertheless can determine its meaning from the
steadily expanded the income and assets of said business enterprises from year to context of the Law as well as from its ordinary usage. The concept of abandonment
year, contrary to the allegations of the complainant, as proved by his balance sheet in article 178 may be established in relation to the alternative remedies granted to
and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and the wife when she has been abandoned by the husband, namely, receivership,
that out of the income of their enterprises he had purchased additional equipment administration by her, or separation of property, all of which are designed to
and machineries and has partially paid their indebtedness to the Philippine National protect the conjugal assets from waste and dissipation rendered imminent by the
Bank and the Development Bank of the Philippines. husband's continued absence from the conjugal abode, and to assure the wife of a
ready and steady source of support. Therefore, physical separation alone is not the
It will be noted that the plaintiff does not ask for legal separation. The evidence full meaning of the term "abandonment", if the husband, despite his voluntary
presented by her to prove concubinage on the part of the defendant, while departure from the society of his spouse, neither neglects the management of the
pertinent and material in the determination of the merits of a petition for legal conjugal partnership nor ceases to give support to his wife.
separation, must in this case be regarded merely as an attempt to bolster her claim
that the defendant had abandoned her, which abandonment, if it constitutes The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or
abandonment in law, would justify separation of the conjugal assets under the renounce utterly. 2 The dictionaries trace this word to the root idea of "putting
applicable provisions of article 178 of the new Civil Code which read: "The under a bar". The emphasis is on the finality and the publicity with which some
separation in fact between husband and wife without judicial approval, shall not thing or body is thus put in the control of another, and hence the meaning of giving
affect the conjugal partnership, except that . . . if the husband has abandoned the up absolutely, with intent never again to resume or claim one's rights or
wife without just cause for at least one year, she may petition the court for a interests. 3 When referring to desertion of a wife by a husband, the word has been
receivership, or administration by her of the conjugal partnership property, or defined as "the act of a husband in voluntarily leaving his wife with intention to
separation of property". In addition to abandonment as a ground, the plaintiff also forsake her entirely, never to return to her, and never to resume his marital duties
invokes article 167 of the new Civil Code in support of her prayer for division of the towards her, or to claim his marital rights; such neglect as either leaves the wife
matrimonial assets. This article provides that "In case of abuse of powers of destitute of the common necessaries of life, or would leave her destitute but for the
administration of the conjugal partnership property by the husband, the courts, on charity of others." 4 The word "abandonment", when referring to the act of one
consort of leaving the other, is "the act of the husband or the wife who leaves his or signed as "D" and the addressee was one unidentified "Darling". The plaintiff's
her consort wilfully, and with an intention of causing per perpetual testimony on cross-examination, hereunder quoted, underscores such failure:
separation." 5 Giving to the word "abandoned", as used in article 178, the meaning
drawn from the definitions above reproduced, it seems rather clear that to Q. You personally never received any letter from Nenita?
constitute abandonment of the wife by the husband, there must be absolute
cessation of marital relations and duties and rights, with the intention of perpetual A. No.
separation.
Q. Neither have you received on any time until today from 1949 from
Coming back to the case at bar, we believe that the defendant did not intend to Nenita?
leave his wife and children permanently. The record conclusively shows that he
continued to give support to his family despite his absence from the conjugal home.
A. No.
This fact is admitted by the complainant, although she minimized the amount of
support given, saying that it was only P500 monthly. There is good reason to
Q. Neither have you written to her any letter yourself until now?
believe, however, that she and the children received more than this amount, as the
defendant's claim that his wife and children continued to draw from his office more
than P500 monthly was substantially corroborated by Marcos Ganaban, whose A. Why should I write a letter to her.
declarations were not rebutted by the plaintiff. And then there is at all no showing
that the plaintiff and the children were living in want. On the contrary, the plaintiff Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting
admitted, albeit reluctantly, that she frequently played mahjong, from which we of Nenita. Is that right?
can infer that she had money; to spare.
A. I can say that Nenita writes very well.
The fact that the defendant never ceased to give support to his wife and children
negatives any intent on his part not to return to the conjugal abode and resume his Q. I am not asking you whether she writes very well or not but, my
marital duties and rights. In People v. Schelske, 6 it was held that where a husband, question is this: In view of the fact that you have never received a letter
after leaving his wife, continued to make small contributions at intervals to her from Nenita, you have ot sent any letter to her, you are not familiar with
support and that of their minor child, he was not guilty of their "abandonment", her handwriting?
which is an act of separation with intent that it shall be perpetual, since
contributing to their support negatived such intent. In re Hoss' Estate, supra, it was A. Yes.
ruled that a father did not abandon his family where the evidence disclosed that he
almost always did give his wife part of his earnings during the period of their Q. You have not seen her writing anybody?
separation and that he gradually paid some old rental and grocery bills.
A. Yes.
With respect to the allegation that the defendant maintained a concubine, we
believe, contrary to the findings of the court a quo, that the evidence on record fails
Anent the allegation that the defendant had mismanaged the conjugal partnership
to preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez
property, the record presents a different picture. There is absolutely no evidence to
was the concubine of the defendant and that they were living as husband and wife
show that he has squandered the conjugal assets. Upon the contrary, he proved
in Manila, is altogether too indefinite. Aside from the uncorroborated statement of
that through his industry and zeal, the conjugal assets at the time of the trial had
the plaintiff that she knew that Nenita Hernandez was her husband's concubine,
increased to a value of over a million pesos.
without demonstrating by credible evidence the existence of illicit relations
between Nenita and the defendant, the only evidence on record offered to link the
defendant to his alleged mistress is exh. C. The plaintiff however failed to connect The lower court likewise erred in holding that mere refusal or failure of the husband
authorship of the said letter with Nenita, on the face whereof the sender merely as administrator of the conjugal partnership to inform the wife of the progress of
the family businesses constitutes abuse of administration. For "abuse" to exist, it is
not enough that the husband perform an act or acts prejudicial to the wife. Nor is it
sufficient that he commits acts injurious to the partnership, for these may be the On the matter of attorney's fees, it is our view that because the defendant, by
result of mere inefficient or negligent administration. Abuse connotes willful and leaving the conjugal abode, has given cause for the plaintiff to seek redress in the
utter disregard of the interests of the partnership, evidenced by a repetition of courts, and ask for adequate support, an award of attorney's fees to the plaintiff
deliberate acts and/or omissions prejudicial to the latter. 7 must be made. Ample authority for such award is found in paragraphs 6 and 11 of
article 2208 of the new Civil Code which empower courts to grant counsel's fees "in
If there is only physical separation between the spouses (and nothing more), actions for legal support" and in cases "where the court deems it just and equitable
engendered by the husband's leaving the conjugal abode, but the husband that attorney's fees . . . should be recovered." However, an award of P10,000, in our
continues to manage the conjugal properties with the same zeal, industry, and opinion, is, under the environmental circumstances, sufficient.
efficiency as he did prior to the separation, and religiously gives support to his wife
and children, as in the case at bar, we are not disposed to grant the wife's petition This Court would be remiss if it did not, firstly, remind the plaintiff and the
for separation of property. This decision may appear to condone the husband's defendant that the law enjoins husband and wife to live together, and, secondly,
separation from his wife; however, the remedies granted to the wife by articles 167 exhort them to avail of — mutually, earnestly and steadfastly — all opportunities
and 178 are not to be construed as condonation of the husband's act but are for reconciliation to the end that their marital differences may be happily resolved,
designed to protect the conjugal partnership from waste and shield the wife from and conjugal harmony may return and, on the basis of mutual respect and
want. Therefore, a denial of the wife's prayer does not imply a condonation of the understanding, endure.
husband's act but merely points up the insufficiency or absence of a cause of
action.1äwphï1.ñët ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal
properties, is reversed and set aside. Conformably to our observations, however,
Courts must need exercise judicial restraint and reasoned hesitance in ordering a the defendant is ordered to pay to the plaintiff, in the concept of support, the
separation of conjugal properties because the basic policy of the law is homiletic, to amount of P3,000 per month, until he shall have rejoined her in the conjugal home,
promote healthy family life and to preserve the union of the spouses, in person, in which amount may, in the meantime, be reduced or increased in the discretion of
spirit and in property. the court a quo as circumstances warrant. The award of attorney's fees to the
plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.
Consistent with its policy of discouraging a regime of separation as not in
harmony with the unity of the family and the mutual affection and help Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
expected of the spouses, the Civil Code (both old and new) requires that Angeles and Fernando, JJ., concur.
separation of property shall not prevail unless expressly stipulated in
marriage settlements before the union is solemnized or by formal judicial
decree during the existence of the marriage (Article 190, new Civil Code,
Article 1432, old Civil Code): and in the latter case, it may only be ordered
by the court for causes specified in Article 191 of the new Civil Code. 8

Furthermore, a judgment ordering the division of conjugal assets where there has
been no real abandonment, the separation not being wanton and absolute, may
altogether slam shut the door for possible reconciliation. The estranged spouses
may drift irreversibly further apart; the already broken family solidarity may be
irretrievably shattered; and any flickering hope for a new life together may be
completely and finally extinguished.

The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958,
long before the devaluation of the Philippine peso in 1962, should be increased to
P3,000.
committed adultery but Leonila, instead of answering his query, merely packed up
and left, which he took as a confirmation of the acts of infidelity imputed on her.
G.R. No. L-10033 December 28, 1956 After that and despite such belief, plaintiff exerted efforts to locate her and failing
to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
BENJAMIN BUGAYONG, plaintiff-appellant,
vs. On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of
LEONILA GINEZ, defendant-appellee. Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who
timely filed an answer vehemently denying the averments of the complaint and
FELIX, J.: setting up affirmative defenses. After the issues were joined and convinced that a
reconciliation was not possible, the court set the case for hearing on June 9, 1953.
Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-
This is a case for legal separation filed in the Court of First Instance of Pangasinan
husband finished testifying in his favor, counsel for the defendant orally moved for
wherein on motion of the defendant, the case was dismissed. The order of dismissal
the dismissal of the complaint, but the Court ordered him to file a written motion to
was appealed to the Court of Appeals, but said Tribunal certified the case to the
that effect and gave plaintiff 10 days to answer the same.
Court on the ground that there is absolutely no question of fact involved, the
motion being predicated on the assumption as true of the very facts testified to by
plaintiff-husband. The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of "acts of rank
infidelity amounting to adultery", the cause of action, if any, is barred by the statute
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a
of limitations; (2) That under the same assumption, the act charged have been
serviceman in the United States Navy, was married to defendant Leonila Ginez on
condoned by the plaintiff-husband; and (3) That the complaint failed to state a
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after
cause of action sufficient for this court to render a valid judgment.
their marriage, the couple lived with their sisters who later moved to Sampaloc,
Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her
sister-in-law and informed her husband by letter that she had gone to reside with The motion to dismiss was answered by plaintiff and the Court, considering only the
her mother in Asingan, Pangasinan, from which place she later moved to Dagupan second ground of the motion to dismiss i. e., condonation, ordered the dismissal of
City to study in a local college there. the action. After the motion for reconsideration filed by plaintiff was denied, the
case was taken up for review to the Court of Appeals, appellant's counsel
maintaining that the lower court erred:
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were
not produced at the hearing) informing him of alleged acts of infidelity of his wife (a) In so prematurely dismissing the case;
which he did not even care to mention. On cross-examination, plaintiff admitted
that his wife also informed him by letter, which she claims to have destroyed, that a (b) In finding that there were condonation on the part of plaintiff-
certain "Eliong" kissed her. All these communications prompted him in October, appellant; and
1951 to seek the advice of the Navy Chaplain as to the propriety of a legal
separation between him and his wife on account of the latter's alleged acts of (c) In entertaining condonation as a ground for dismissal inasmuch as same
infidelity, and he was directed to consult instead the navy legal department. was not raised in the answer or in a motion to dismiss.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife As the questions raised in the brief were merely questions of law, the Court of
whom he met in the house of one Mrs. Malalang, defendant's godmother. She Appeals certified the case to Superiority.
came along with him and both proceeded to the house of Pedro Bugayong, a cousin
of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as The Civil Code provides:
husband and wife. Then they repaired to the plaintiff's house and again passed the
night therein as husband and wife. On the second day, Benjamin Bugayong tried to ART. 97. A petition for legal separation may be filed:
verify from his wife the truth of the information he received that she had
(1) For adultery on the part of the wife and for concubinage for the part of the looked for his wife and after finding her they lived together as husband and wife for
husband as defined on the Penal Code; or 2 nights and 1 day, after which he says that he tried to verify from her the truth of
the news he had about her infidelity, but failed to attain his purpose because his
(2) An attempt by one spouse against the life of the other. wife, instead of answering his query on the matter, preferred to desert him,
probably enraged for being subjected to such humiliation. And yet he tried to locate
ART. 100. The legal separation may be claimed only by the innocent her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2
spouse, provided there has been no condonation of or consent to the adultery or nights despite his alleged belief that she was unfaithful to him, amount to a
concubinage. Where both spouses are offenders, a legal separation cannot by condonation of her previous and supposed adulterous acts? In the order appealed
either of them. Collusion between the parties to obtain legal separation shall cause from, the Court a quo had the following to say on this point:
the dismissal of the petition.
In the hearing of the case, the plaintiff further testified as follows:
ART. 102. An action for legal separation cannot be filed except within one year from
and after the date on which the plaintiff became cognizant of the cause and within Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife.
five years from and after the date when such cause occurred. Please tell this Hon. Court why you want to separate from your wife? — A. I came to
know that my wife is committing adultery, I consulted the chaplain and he told me
As the only reason of the lower Court for dismissing the action was the alleged to consult the legal adviser. (p. 11, t.s.n.)
condonation of the charges of adultery that the plaintiff-husband had preferred in
the complaint against his wife, We will disregard the other 2 grounds of the motion Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival
to dismiss, as anyway they have not been raised in appellant's assignment of errors. she went to the house of our god-mother, and as a husband I went to her to come
along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net
Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the Q. What happened next? — A. I persuaded her to come along with me. She
"conditional forgiveness or remission, by a husband or wife of a matrimonial consented but I did not bring her home but brought her to the house of my cousin
offense which the latter has committed". It is to be noted, however, that in Pedro Bugayong. (p. 12, t.s.n.)
defendant's answer she vehemently and vigorously denies having committed any
act of infidelity against her husband, and even if We were to give full weight to the Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One
testimony of the plaintiff, who was the only one that had the chance of testifying in day and one night. (p. 12. t.s.n.)
Court and link such evidence with the averments of the complaint, We would have
to conclude that the facts appearing on the record are far from sufficient to Q. That night when you stayed in the house of your cousin Pedro Bugayong as
establish the charge of adultery, or, as the complaint states, of "acts of rank husband and wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)
infidelity amounting to adultery" preferred against the defendant. Certainly, the
letter that plaintiff claims to have received from his sister-in-law Valeriana Q. On the next night, when you slept in your own house, did you sleep together also
Polangco, which must have been too vague and indefinite as to defendant's as husband and wife? — A. Yes, sir. (p. 19. t.s.n.)
infidelity to deserve its production in evidence; nor the anonymous letters which
plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his
Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
wife addressed to him admitting that she had been kissed by one Eliong, whose
identity was not established and which admission defendant had no opportunity to
Q. How many nights did you sleep together as husband and wife? — A. Only two
deny because the motion to dismiss was filed soon after plaintiff finished his
nights. (p. 19, t.s.n.)
testimony in Court, do not amount to anything that can be relied upon.

The New Civil Code of the Philippines, in its Art. 97, says:
But this is not a question at issue. In this appeal, We have to consider plaintiff's line
of conduct under the assumption that he really believed his wife guilty of adultery.
What did he do in such state of mind. In August, 1952, he went to Pangasinan and A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband It has been held in a long line of decisions of the various supreme courts of the
as defined on the Penal Code. different states of the U. S. that 'a single voluntary act of sexual intercourse by the
innocent spouse after discovery of the offense is ordinarily sufficient to constitute
and in its Art. 100 it says:lawphil.net condonation, especially as against the husband'. (27 Corpus Juris Secundum, section
61 and cases cited therein).
The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
spouses are offenders, legal separation cannot be claimed by either of them. above quoted, and of the various decisions above-cited, the inevitable conclusion is
Collusion between the parties to obtain legal separation shall cause the dismissal of that the present action is untenable.
the petition.
Although no acts of infidelity might have been committed by the wife, We agree
A detailed examination of the testimony of the plaintiff-husband, especially those with the trial judge that the conduct of the plaintiff-husband above narrated
portions quoted above, clearly shows that there was a condonation on the part of despite his belief that his wife was unfaithful, deprives him, as alleged the offended
the husband for the supposed "acts of rank infidelity amounting to adultery" spouse, of any action for legal separation against the offending wife, because his
committed by defendant-wife. Admitting for the sake of argument that the said conduct comes within the restriction of Article 100 of the Civil Code.
infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in The only general rule in American jurisprudence is that any cohabitation with the
persuading her to come along with him, and the fact that she went with him and guilty party, after the commission of the offense, and with the knowledge or belief
consented to be brought to the house of his cousin Pedro Bugayong and together on the part of the injured party of its commission, will amount to conclusive
they slept there as husband and wife for one day and one night, and the further fact evidence of condonation; but this presumption may be rebutted by evidence (60 L.
that in the second night they again slept together in their house likewise as husband J. Prob. 73).
and wife — all these facts have no other meaning in the opinion of this court than
that a reconciliation between them was effected and that there was a condonation If there had been cohabitation, to what extent must it be to constitute
of the wife by the husband. The reconciliation occurred almost ten months after he condonation?
came to know of the acts of infidelity amounting to adultery.
Single voluntary act of marital intercourse between the parties ordinarily is
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that sufficient to constitute condonation, and where the parties live in the same house,
"condonation is implied from sexual intercourse after knowledge of the other it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S.,
infidelity. such acts necessary implied forgiveness. It is entirely consonant with section 6-d).
reason and justice that if the wife freely consents to sexual intercourse after she has
full knowledge of the husband's guilt, her consent should operate as a pardon of his A divorce suit will not be granted for adultery where the parties continue to live
wrong." together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac.
974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers,
In Tiffany's Domestic and Family Relations, section 107 says: 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So.
Condonation. Is the forgiveness of a marital offense constituting a ground for 702), and many others. The resumption of marital cohabitation as a basis of
divorce and bars the right to a divorce. But it is on the condition, implied by the law condonation will generally be inferred, nothing appearing to the contrary, from the
when not express, that the wrongdoer shall not again commit the offense; and also fact of the living together as husband and wife, especially as against the husband
that he shall thereafter treat the other spouse with conjugal kindness. A breach of (Marsh vs. Marsh, 14 N. J. Eq. 315).
the condition will revive the original offense as a ground for divorce. Condonation
may be express or implied. There is no ruling on this matter in our jurisprudence but we have no reason to
depart from the doctrines laid down in the decisions of the various supreme courts
of the United States above quoted.
There is no merit in the contention of appellant that the lower court erred in
entertaining condonation as a ground for dismissal inasmuch as same was not
raised in the answer or in a motion to dismiss, because in the second ground of the
motion to dismiss. It is true that it was filed after the answer and after the hearing
had been commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of plaintiff himself
(section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby
affirmed, with costs against appellant. It is so ordered.

G.R. No. L-3047 May 16, 1951


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, provision which bars the filing of as many complaints for adultery as there were
vs. adulterous acts committed, each constituting one crime.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.
The notion or concept of a continuous crime has its origin in the juridical fiction
PADILLA, J.: favorable to the law transgressors and in many a case against the interest of society
(Cuello Calon, Derecho Penal, Vol. II, p. 521). For it to exist there would be plurality
In the Court of First Instance of Pampanga a complaint for adultery was filed by of acts performed seperately during a period of time; unity of penal provision
Andres Bondoc against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her infringed upon or violated; and unity of criminal intent or purpose, which means
paramour, for cohabiting and having repeated sexual intercourse during the period that two or more violations of the same penal provision are united in one and the
from the year 1946 14 March 1947, the date of the filing of the complaint, Dalmacio same intent leading to the perpetration of the same criminal purpose or aim (Ibid.
Bondoc knowing his codefendant to be a married woman (criminal case No. 426). p. 520).In the instant case the last unity does not exist, because as already stated
The defendant wife entered the plea of guilty and was sentenced to suffer four the culprits perpetrate the crime in every sexual intercourse and they need not to
months of arresto mayor which penalty she served. In the same court, on 17 another or other adulterous acts to consummate it. After the last acts of adultery
September 1948, the offended husband filed another complaint for adulterous acts had been committed as charged in the first complaint, the defendants again
committed by his wife and her paramour from 15 March 1947 to 17 September committed adulterous acts not included in the first complaint and for which the
1948, the date of the filing of the second complaint (criminal case No. 735). On 21 second complaint was filed. It was held by the Supreme Court of Spain that another
February 1949, each of the defendants filed a motion to quash the complaint of the crime of adultery was committed, if the defendants, after their provincional release
ground that they would be twice put in jeopardy of punishment for the same during the pendency of the case in which they were sent to prison to serve the
offense. The trial court upheld the contention of the defendants and quashed the penalty imposed upon them(S. 28 February 1906; 76 Jur. Crim. pp. 208-210).
second complaint. From the other sustaining the motions to quash the prosecution
has appealed. Another reason why a second complaint charging the commission of adulterous
acts not included in the first complaint does not constitute a violation of the double
The trial court held that the adulterous acts charged in the first and second jeopardy clause of the constitution is that, if the second places complaint the
complains must be deemed one continuous offense, the defendants in both defendants twice in jeopardy of punishment for the same offense, the adultery
complaints being the same and identical persons and the two sets of unlawful acts committed by the male defendant charged in the second complaint, should he be
having taken place continuously during the years 1946, 1947 and part of 1948, and absolved from, or acquitted of, the first charge upon the evidence that he did not
that the acts or two sets of acts that gave rise to the crimes of adultery complained know that his codefendant was a married woman, would remain or go unpunished.
of in both cases constitute one and the same offense, within the scope and meaning The defense set up by him against the first charge upon which he was acquitted
of the constitutional provision that "No person shall be twice put in jeopardy of would no longer be available, because at the time of the commission of the crime
punishment for the same offense.". charged in the second complaint, he already knew that this defendant was a
married woman and he continued to have carnal knowledge of her. Even if the
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has husband should pardon his adulterous wife, such pardon would not exempt the
held (S. 10 December 1945); it is a instantaneous crime which is consummated and wife and her paramour from criminal liability for adulterous acts committed after
exhausted or completed at the moment of the carnal union. Each sexual intercourse the pardon was granted because the pardon refers to previous and not to
constitutes a crime of adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208; Groizard [2nd ed.] Vol. 5,
two or more adulterous acts committed by the same defendants are against the pp. 57-58).
same person — the offended husband, the same status — the union of the husband
and wife by their marriage, and the same community represented by the State for The order appealed from, which quashed the second complaint for adultery, is
its interest in maintaining and preserving such status. But this identity of the hereby reversed and set aside, and trial court directed to proceed with the trial of
offended party, status society does not argue against the commission of the crime the defendants in accordance with law, with costs against the appellees.
of adultery as many times as there were carnal consummated, for as long as the
status remain unchanged, the nexus undissolved and unbroken, an encroachment
or trespass upon that status constitutes a crime. There is no constitutional or legal
G.R. No. L-11766 October 25, 1960 In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on
September 1, 1955, said Asuncion gave birth to a child who was recorded as the
SOCORRO MATUBIS, plaintiff-appellant, child of said defendant (Exh. C.).It was shown also that defendant and Asuncion
vs. deported themselves as husband and wife and were generally reputed as such in
ZOILO PRAXEDES, defendant-appellee. the community.

Luis N. de Leon for appellant. After the trial, without the defendant adducing any evidence, the court a
Lucio La. Margallo for appellee. quo rendered judgment holding that the acts of defendant constituted
concubinage, a ground for legal separation. It however, dismissed the complaint by
PAREDES, J.: stating:

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the While this legal ground exist, the suit must be dismissed for two
Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal reasons, viz:
Separation and changed of surname against her husband defendant Zoilo Praxedes.
Under Art. 102 of the new Civil Code, an action for legal separation cannot
The allegations of the complaint were denied by defendant spouse, who interposed be filed except within one year from and after the date on which the
the defense that it was plaintiff who left the conjugal home. plaintiff became cognizant of the cause and within five years from and
after the date when the cause occurred. The plaintiff became aware of the
illegal cohabitation of her husband with Asuncion Rebulado in January,
During the trial, wherein the plaintiff alone introduced oral as well as documentary
1955. The complaint was filed on April 24, 1956. The present action was,
evidence, the following facts were established:.
therefore, filed out of time and for that reason action is barred.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines
Article 100 of the new Civil Code provides that the legal separation may be
Sur. For failure to agree on how they should live as husband and wife, the couple,
claimed only by the innocent spouse, provided there has been no
on May 30, 1944, agreed to live separately from each other, which status remained
condonation of or consent to the adultery or concubinage. As shown in
unchanged until the present. On April 3, 1948, plaintiff and defendant entered into
Exhibit B, the plaintiff has consented to the commission of concubinage by
an agreement (Exhibit B), the significant portions of which are hereunder
her husband. Her consent is clear from the following stipulations:
reproduced..

(b) That both of us is free to get any mate and live with as husband and wife
. . . (a) That both of us relinquish our right over the other as legal husband and wife.
without any interference by any of us, nor either of us can prosecute the other for
adultery or concubinage or any other crime or suit arising from our separation. (Exh.
(b) That both without any interference by any of us, nor either of us can prosecute
B).
the other for adultery or concubinage or any other crime or suit arising from our
separation.
This stipulation is an unbridled license she gave her husband to commit
concubinage. Having consented to the concubinage, the plaintiff cannot
(c) That I, the, wife, is no longer entitled for any support from my husband or any
claim legal separation.
benefits he may received thereafter, nor I the husband is not entitled for anything
from my wife.
The above decision is now before us for review, plaintiff- appellant claiming that it
was error for the lower court to have considered that the period to bring the action
(d) That neither of us can claim anything from the other from the time we
has already elapsed and that there was consent on the part of the plaintiff to the
verbally separated, that is from May 30, 1944 to the present when we
concubinage. The proposition, therefore, calls for the interpretation of the
made our verbal separation into writing.
provisions of the law upon which the lower court based its judgment of dismissal.
Article 102 of the new Civil Code provides:

An action for legal separation cannot be filed except within one year from
and after the date on which the plaintiff became cognizant of the cause
and within five years from after the date when cause occurred.

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

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

Conformably with the foregoing, we find that the decision appealed from is in
accordance with the evidence and the law on the matter. The same is hereby
affirmed, with costs.

G.R. No. L-53880 March 17, 1994


ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. on 06 February 1980, the court denied this last motion on the ground that it was
PACETE and EDUARDO C. PACETE, petitioners, "filed after the original period given . . . as first extension had expired."1
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS The plaintiff thereupon filed a motion to declare the defendants in default, which
PACETE, respondents. the court forthwith granted. The plaintiff was then directed to present her
evidence.2 The court received plaintiff's evidence during the hearings held on 15,
VITUG, J.: 20, 21 and 22 February 1980.

The issue in this petition for certiorari is whether or not the Court of First Instance On 17 March 1980, the court3 promulgated the herein questioned decision,
(now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its disposing of the case, thus —
discretion in denying petitioners' motion for extension of time to file their answer in
Civil Case No. 2518, in declaring petitioners in default and in rendering its decision WHEREFORE, order is hereby issued ordering:
of 17 March 1980 which, among other things, decreed the legal separation of
petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be 1. The issuance of a Decree of Legal Separation of the marriage between, the
null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion. plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete, in accordance with the Philippine laws and with consequences, as provided
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for for by our laws;
the declaration of nullity of the marriage between her erstwhile husband Enrico L.
Pacete and one Clarita de la Concepcion, as well as for legal separation (between 2. That the following properties are hereby declared as the conjugal properties of
Alanis and Pacete), accounting and separation of property. In her complaint, she the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
averred that she was married to Pacete on 30 April 1938 before the Justice of the defendant, Enrico L. Pacete, half and half, to wit:
Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second
1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in
marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she
the barrio of Langcong, Municipality of Matanog (previously of Parang), province of
learned of such marriage only on 01 August 1979; that during her marriage to
Maguindanao (previously of Cotabato province) with an area of 45,265 square
Pacete, the latter acquired vast property consisting of large tracts of land, fishponds
meters registered in the name of Enrico Pacete, Filipino, of legal age, married to
and several motor vehicles; that he fraudulently placed the several pieces of
Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
property either in his name and Clarita or in the names of his children with Clarita
and other "dummies;" that Pacete ignored overtures for an amicable settlement;
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area
and that reconciliation between her and Pacete was impossible since he evidently
of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of
preferred to continue living with Clarita.
Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together
with all its improvements, which parcel of land, as shown by Exhibits "K-1" was
The defendants were each served with summons on 15 November 1979. They filed
acquired by way of absolute deed of sale executed by Amrosio Mondog on January
a motion for an extension of twenty (20) days from 30 November 1979 within which
14, 1965.
to file an answer. The court granted the motion. On 18 December 1979, appearing
through a new counsel, the defendants filed a second motion for an extension of
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower
by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as
court granted the motion but only for twenty (20) days to be counted from 20
shown by Exhibit "R", the same was registered in the name of Enrico Pacete and the
December 1979 or until 09 January 1980. The Order of the court was mailed to
same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as
defendants' counsel on 11 January 1980. Likely still unaware of the court order, the
shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
defendants, on 05 February 1980, again filed another motion (dated 18 January
1980) for an extension of "fifteen (15) days counted from the expiration of the 30-
day period previously sought" within which to file an answer. The following day, or
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S", address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao
and registered in the name of Enrico Pacete. and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.

5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at 4. Ordering likewise the cancellation of Original Certificate of Title
Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is No. V-20101, covering Lot No. 77, in the name of Eduardo C.
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on issuance of a new Transfer Certificate of Title in the joint name of
September 24, 1962, as shown by Exhibit "Q-1". (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area
of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the 5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel 12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
of land is situated at (Kialab), Kiab, Matalam, North Cotabato. Transfer Certificate of Title in the joint name (half and half) of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and
Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be
and also covered by Tax Declaration No. 8607 (74) both in the name of the cancelled and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda and her husband, Enrico L. Pacete, be registered as their joint property, including
Bernardino, as shown by Exhibit "M-1". the 50 hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao
del Sur.
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at
Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the 6. Ordering the following motor vehicles to be the joint properties of the conjugal
name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
name of Enrico Pacete and which parcel of land he acquired last September 25,
1962 from Conchita dela Torre, as shown by Exhibit "P-1". a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561;
Chassis No. 83920393, and Type, Mcarrier;
. A parcel of land covered by Transfer Certificate of Title No. T10301, situated at
Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547;
name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in the Chassis No. 10D-1302-C; and Type, Mcarrier;
name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July 16,
1963, as shown by Exhibit "N-1". c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of
the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111;
Matalam, North Cotabato and is also covered by Tax Declaration No. 5745 (74) in Chassis No. HOCC-GPW-1161188-G; Type, Stake;
the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete
acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1". e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No.
ED300-45758; Chassis No. KB222-22044; Type, Stake; and
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of Concepcion
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; The policy of Article 101 of the new Civil Code, calling for the intervention of the
Chassis No. 10F-13582-K; Type, Stake. state attorneys in case of uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize that marriage is more
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of than a mere contract; that it is a social institution in which the state is vitally
P46,950.00 which is the share of the plaintiff in the unaccounted income of the interested, so that its continuation or interruption can not be made to depend upon
ricemill and corn sheller for three years from 1971 to 1973. the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43;
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary this policy that the inquiry by the Fiscal should be allowed to focus upon any
equipment of 30% of whether the plaintiff has recovered as attorney's fees; relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not.
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
Clarita de la Concepcion to be void ab initio; and Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates
that an action for legal separation must "in no case be tried before six months shall
have elapsed since the filing of the petition," obviously in order to provide the
10. Ordering the defendants to pay the costs of this suit. 4
parties a "cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.
Hence, the instant special civil action of certiorari.
The significance of the above substantive provisions of the law is further
Under ordinary circumstances, the petition would have outrightly been dismissed,
underscored by the inclusion of the following provision in Rule 18 of the Rules of
for, as also pointed out by private respondents, the proper remedy of petitioners
Court:
should have instead been either to appeal from the judgment by default or to file a
petition for relief from judgment.5 This rule, however, is not inflexible; a petition
Sec. 6. No defaults in actions for annulments of marriage or for legal separation. —
for certiorari is allowed when the default order is improperly declared, or even
If the defendant in an action for annulment of marriage or for legal separation fails
when it is properly declared, where grave abuse of discretion attended such
to answer, the court shall order the prosecuting attorney to investigate whether or
declaration.6 In these exceptional instances, the special civil action of certiorari to
not a collusion between the parties exists, and if there is no collusion, to intervene
declare the nullity of a judgment by default is available. 7 In the case at bench, the
for the State in order to see to it that the evidence submitted is not fabricated.
default order unquestionably is not legally sanctioned. The Civil Code provides:

The special prescriptions on actions that can put the integrity of marriage to
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of
possible jeopardy are impelled by no less than the State's interest in the marriage
facts or by confession of judgment.
relation and its avowed intention not to leave the matter within the exclusive
domain and the vagaries of the parties to alone dictate.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That
no collusion, the prosecuting attorney shall intervene for the State in order to take
other remedies, whether principal or incidental, have likewise been sought in the
care that the evidence for the plaintiff is not fabricated.
same action cannot dispense, nor excuse compliance, with any of the statutory
requirements aforequoted.
The provision has been taken from Article 30 of the California Civil Code,8 and it is,
in substance, reproduced in Article 60 of the Family Code.9
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and
Article 101 reflects the public policy on marriages, and it should easily explain the
SET ASIDE. No costs.SO ORDERED.
mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed:
G.R. No. L-17014 August 11, 1921
MARIANO B. ARROYO, plaintiff-appellant, person. The tales of cruelty on the part of the husband towards the wife, which are
vs. the basis of the cross-action, are in our opinion no more than highly colored
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee. 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
Fisher & DeWitt for appellant. morbid condition exhibited by the wife. The judgment must therefore be recorded
Powell & Hill for appellee. that the abandonment by her of the marital home was without sufficient
justification in fact.
STREET, J.:
In examining the legal questions involved, it will be found convenient to dispose
Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of first of the defendant's cross-complaint. To begin with, the obligation which the law
wedlock by marriage in the year 1910, and since that date, with a few short imposes on the husband to maintain the wife is a duty universally recognized in civil
intervals of separation, they have lived together as man and wife in the city of Iloilo society and is clearly expressed in articles 142 and 143 of the Civil code. The
until July 4, 1920, when the wife went away from their common home with the enforcement of this obligation by the wife against the husband is not conditioned
intention of living thenceforth separate from her husband. After efforts had been upon the procurance of a divorce by her, nor even upon the existence of a cause for
made by the husband without avail to induce her to resume marital relations, this divorce. Accordingly it had been determined that where the wife is forced to leave
action was initiated by him to compel her to return to the matrimonial home and the matrimonial abode and to live apart from her husband, she can, in this
live with him as a dutiful wife. The defendant answered, admitting the fact of jurisdiction, compel him to make provision for her separate maintenance
marriage, and that she had left her husband's home without his consent; but she (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the
averred by way of defense and cross-complaint that she had been compelled to expenses, including attorney's fees, necessarily incurred in enforcing such
leave by cruel treatment on the part of her husband. Accordingly she in turn prayed obligation, (Mercado vs.Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests
for affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the of both parties as well as of society at large require that the courts should move
conjugal partnership; (3) and an allowance for counsel fees and permanent with caution in enforcing the duty to provide for the separate maintenance of the
separate maintenance. Upon hearing the cause the lower court gave judgment in wife, for this step involves a recognition of the de facto separation of the spouses —
favor of the defendant, authorizing her to live apart from her husband, granting her a state which is abnormal and fraught with grave danger to all concerned. From this
alimony at the rate of P400 per month, and directing that the plaintiff should pay to consideration it follows that provision should not be made for separate
the defendant's attorney the sum of P1,000 for his services to defendant in the trial maintenance in favor of the wife unless it appears that the continued cohabitation
of the case. The plaintiff thereupon removed the case with the usual formalities by of the pair has become impossible and separation necessary from the fault of the
appeal to this court. husband.

The trial judge, upon consideration of the evidence before him, reached the In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the
conclusion that the husband was more to blame than his wife and that his eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the
continued ill-treatment of her furnished sufficient justification for her abandonment wife separate from the husband will only be sustained when the reasons for it are
of the conjugal home and the permanent breaking off of marital relations with him. imperative (47 Mich., 151). That imperative necessity is the only ground on which
We have carefully examined and weighed every line of the proof, and are of the such a proceeding can be maintained also appears from the decision in
opinion that the conclusion stated is wholly untenable. The evidence shows that the Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial
wife is afflicted with a disposition of jealousy towards her husband in an aggravated divorces have never been procurable on any ground, the Supreme court fully
degree; and to his cause are chiefly traceable without a doubt the many miseries recognizes the right of the wife to have provision for separate maintenance, where
that have attended their married life. In view of the decision which we are to it is impossible for her to continue safely to cohabit with her husband; but the same
pronounce nothing will be said in this opinion which will make the resumption of court has more than once rejected the petition of the wife for separate
married relations more difficult to them or serve as a reminder to either of the maintenance where it appeared that the husband's alleged cruelty or ill-treatment
mistakes of the past; and we prefer to record the fact that so far as the proof in this was provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's
record shows neither of the spouses has at any time been guilty of conjugal Chan. [S. Car.], 197; 16 Am. Dec., 597; Boyd vs.Boyd, Har. Eq. [S. Car.], 144.)
infidelity, or has given just cause to the other to suspect illicit relations with any
Upon one occasion Sir William Scott, pronouncing the judgment of the English they know cannot shake off; they become good husbands and good wives form the
Ecclesiastical Court in a case where cruelty on the part of the husband was relied necessity of remaining husbands and wives; for necessity is a powerful master in
upon to secure a divorce for the wife, made use of the following eloquent words, — teaching the duties which it imposes. . . . In this case, as in many others, the
which are perhaps even more applicable in a proceeding for separate maintenance happiness of some individuals must be sacrificed to the greater and more general
in a jurisdiction where, as here, a divorce cannot be obtained except on the single good. (Evans vs.Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)
ground of adultery and this, too, after the conviction of the guilty spouse in a
criminal prosecution for that crime. Said he: In the light of the considerations stated, it is obvious that the cross-complaint is not
well founded and none of the relief sought therein can be granted.
That the duty of cohabitation is released by the cruelty of one of the
parties is admitted, but the question occurs, What is cruelty? . . . The same considerations that require the dismissal of the cross-complaint
conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit
What merely wounds the mental feelings is in few cases to be admitted where they his right to the marital society of his wife and that she is under an obligation, both
are not accompanied with bodily injury, either actual or menaced. Mere austerity of moral and legal, to return to the common home and cohabit with him. The only
temper, petulance of manners, rudeness of language, a want of civil attention and question which here arises is as to the character and extent of the relief which may
accommodation, even occasional sallies of passion, if they do not threaten bodily be properly conceded to him by judicial decree.
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 The action is one by which the plaintiff seeks the restitution of conjugal rights; and
cruelty against which the law can relieve. Under such misconduct of either of the it is supposed in the petitory part of the complaint that he is entitled to a
parties, for it may exist on the one side as well as on the other, the suffering party permanent mandatory injunction requiring the defendant to return to the conjugal
must bear in some degree the consequences of an injudicious connection; must home and live with him as a wife according to the precepts of law and morality. Of
subdue by decent resistance or by prudent conciliation; and if this cannot be done, course if such a decree were entered, in unqualified terms, the defendant would be
both must suffer in silence. . . . 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
The humanity of the court has been loudly and repeatedly invoked. Humanity is the jurisdiction whether it is competent for the court to make such an order.
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 Upon examination of the authorities we are convinced that it is not within the
of the present parties, it would be a question easily decided upon first impressions. province of the courts of this country to attempt to compel one of the spouses to
Every body must feel a wish to sever those who wish to live separate from each cohabit with, and render conjugal rights to, the other. Of course where the property
other, who cannot live together with any degree of harmony, and consequently rights of one of the pair are invaled, an action for restitution of such rights can be
with any degree of happiness; but my situation does not allow me to indulge the maintained. But we are disinclined to sanction the doctrine that an order, enforcible
feelings, much less the first feelings of an individual. The law has said that married by process of contempt, may be entered to compel the restitution of the purely
persons shall not be legally separated upon the mere disinclination of one or both personal rights of consortium. At best such an order can be effective for no other
to cohabit together. . . . 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
To vindicate the policy of the law is no necessary part of the office of a judge; but if the cohabitation of married people shows that the policy of the practice is
it were, it would not be difficult to show that the law in this respect has acted with extremely questionable. Thus in England, formerly the Ecclesiastical Court
its usual wisdom and humanity with that true wisdom, and that real humanity, that entertained suits for the restitution of conjugal rights at the instance of either
regards the general interests of mankind. For though in particular cases the husband or wife; and if the facts were found to warrant it that court would make a
repugnance of the law to dissolve the obligations of matrimonial cohabitation may mandatory decree, enforcible by process of contempt in case of disobedience,
operate with great severity upon individual, yet it must be carefully remembered requiring the delinquent party to live with the other and render conjugal rights. Yet
that the general happiness of the married life is secured by its indissolubility. When this practice was sometimes criticized even by the judges who felt bound to enforce
people understand that they must live together, except for a very few reasons such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James
known to the law, they learn to soften by mutual accommodation that yoke which 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 complaint, without special pronouncement as to costs of either instance. So
as that which prevailed in Scotland, where a decree of adherence, equivalent to the ordered.
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 G.R. No. L-19671 November 29, 1965
admonished that it is her duty to return. The plaintiff is absolved from the cross-
PASTOR B. TENCHAVEZ, plaintiff-appellant, suggested a recelebration to validate what he believed to be an invalid marriage,
vs. from the standpoint of the Church, due to the lack of authority from the Archbishop
VICENTA F. ESCAÑO, ET AL., defendants-appellees. or the parish priest for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948 Mamerto Escaño
REYES, J.B.L., J.: was handed by a maid, whose name he claims he does not remember, a letter
purportedly coming from San Carlos college students and disclosing an amorous
Direct appeal, on factual and legal questions, from the judgment of the Court of relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the
First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff- letter to her father, and thereafter would not agree to a new marriage. Vicenta and
appellant, Pastor B. Tenchavez, for legal separation and one million pesos in Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
damages against his wife and parents-in-law, the defendants-appellees, Vicente, continued living with her parents while Pastor returned to his job in Manila. Her
Mamerto and Mena,1 all surnamed "Escaño," respectively.2 letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare,
was not as endearing as her previous letters when their love was aflame.
The facts, supported by the evidence of record, are the following:
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor
knew it. She fondly accepted her being called a "jellyfish." She was not prevented by
Missing her late afternoon classes on 24 February 1948 in the University of San
her parents from communicating with Pastor (Exh. "1-Escaño"), but her letters
Carlos, Cebu City, where she was then enrolled as a second year student of
became less frequent as the days passed. As of June, 1948 the newlyweds were
commerce, Vicenta Escaño, 27 years of age (scion of a well-to-do and socially
already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez, Misamis
prominent Filipino family of Spanish ancestry and a "sheltered colegiala"),
Occidental, to escape from the scandal that her marriage stirred in Cebu society.
exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-
There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez,
army officer and of undistinguished stock, without the knowledge of her parents,
to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was
before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in
dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-
the said city. The marriage was the culmination of a previous love affair and was
4").
duly registered with the local civil register.

On 24 June 1950, without informing her husband, she applied for a passport,
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the
indicating in her application that she was single, that her purpose was to study, and
couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker
she was domiciled in Cebu City, and that she intended to return after two years. The
and go-between, they had planned out their marital future whereby Pacita would
application was approved, and she left for the United States. On 22 August 1950,
be the governess of their first-born; they started saving money in a piggy bank. A
she filed a verified complaint for divorce against the herein plaintiff in the Second
few weeks before their secret marriage, their engagement was broken; Vicenta
Judicial District Court of the State of Nevada in and for the County of Washoe, on
returned the engagement ring and accepted another suitor, Joseling Lao. Her love
the ground of "extreme cruelty, entirely mental in character." On 21 October 1950,
for Pastor beckoned; she pleaded for his return, and they reconciled. This time they
a decree of divorce, "final and absolute", was issued in open court by the said
planned to get married and then elope. To facilitate the elopement, Vicenta had
tribunal.
brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was
their usual trysting place.
In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to
annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954,
Although planned for the midnight following their marriage, the elopement did not,
Vicenta sought papal dispensation of her marriage (Exh. "D"-2).
however, materialize because when Vicente went back to her classes after the
marriage, her mother, who got wind of the intended nuptials, was already waiting
for her at the college. Vicenta was taken home where she admitted that she had On 13 September 1954, Vicenta married an American, Russell Leo Moran, in
already married Pastor. Mamerto and Mena Escaño were surprised, because Pastor Nevada. She now lives with him in California, and, by him, has begotten children.
never asked for the hand of Vicente, and were disgusted because of the great She acquired American citizenship on 8 August 1958.
scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06).
The following morning, the Escaño spouses sought priestly advice. Father Reynes
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint Philippine Legislature (which was the marriage law in force at the time) expressly
in the Court of First Instance of Cebu, and amended on 31 May 1956, against provided that —
Vicenta F. Escaño, her parents, Mamerto and Mena Escaño, whom he charged with
having dissuaded and discouraged Vicenta from joining her husband, and alienating SEC. 1. Essential requisites. Essential requisites for marriage are the legal
her affections, and against the Roman Catholic Church, for having, through its capacity of the contracting parties and consent. (Emphasis supplied)
Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal
separation and one million pesos in damages. Vicenta claimed a valid divorce from The actual authority of the solemnizing officer was thus only a formal requirement,
plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; and, therefore, not essential to give the marriage civil effects, 3 and this is
while her parents denied that they had in any way influenced their daughter's acts, emphasized by section 27 of said marriage act, which provided the following:
and counterclaimed for moral damages.
SEC. 27. Failure to comply with formal requirements. No marriage shall be
The appealed judgment did not decree a legal separation, but freed the plaintiff declared invalid because of the absence of one or several of the formal
from supporting his wife and to acquire property to the exclusion of his wife. It requirements of this Act if, when it was performed, the spouses or one of
allowed the counterclaim of Mamerto Escaño and Mena Escaño for moral and them believed in good faith that the person who solemnized the marriage
exemplary damages and attorney's fees against the plaintiff-appellant, to the extent was actually empowered to do so, and that the marriage was perfectly
of P45,000.00, and plaintiff resorted directly to this Court. legal.

The appellant ascribes, as errors of the trial court, the following: The good faith of all the parties to the marriage (and hence the validity of their
marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim,
1. In not declaring legal separation; in not holding defendant Vicenta F. 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that
Escaño liable for damages and in dismissing the complaint;. in the case at bar, doubts as to the authority of the solemnizing priest arose only
after the marriage, when Vicenta's parents consulted Father Reynes and the
2. In not holding the defendant parents Mamerto Escano and the heirs of archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
Doña Mena Escaño liable for damages;. action for annulment and subsequently suing for divorce implies an admission that
her marriage to plaintiff was valid and binding.
3 In holding the plaintiff liable for and requiring him to pay the damages to
the defendant parents on their counterclaims; and. Defendant Vicenta Escaño argues that when she contracted the marriage she was
under the undue influence of Pacita Noel, whom she charges to have been in
4. In dismissing the complaint and in denying the relief sought by the conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth
plaintiff. of that contention, and assuming that Vicenta's consent was vitiated by fraud and
undue influence, such vices did not render her marriage ab initio void, but merely
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the voidable, and the marriage remained valid until annulled by a competent civil court.
defendant-appellee, Vicenta Escaño, were validly married to each other, from the This was never done, and admittedly, Vicenta's suit for annulment in the Court of
standpoint of our civil law, is clearly established by the record before us. Both First Instance of Misamis was dismissed for non-prosecution.
parties were then above the age of majority, and otherwise qualified; and both
consented to the marriage, which was performed by a Catholic priest (army It is equally clear from the record that the valid marriage between Pastor Tenchavez
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that and Vicenta Escaño remained subsisting and undissolved under Philippine law,
said priest was not duly authorized under civil law to solemnize marriages. notwithstanding the decree of absolute divorce that the wife sought and obtained
on 21 October 1950 from the Second Judicial District Court of Washoe County, State
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the
the Ordinary, as required by Canon law, is irrelevant in our civil law, not only time the divorce decree was issued, Vicenta Escaño, like her husband, was still a
because of the separation of Church and State but also because Act 3613 of the Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil
Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly of her husband constitute in law a wrong caused through her fault, for which the
provided: husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither
an unsubstantiated charge of deceit nor an anonymous letter charging immorality
Laws relating to family rights and duties or to the status, condition and against the husband constitute, contrary to her claim, adequate excuse. Wherefore,
legal capacity of persons are binding upon the citizens of the Philippines, her marriage and cohabitation with Russell Leo Moran is technically "intercourse
even though living abroad. with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo basis of adultery" (Revised Penal Code, Art. 333).
ad vinculo matrimonii; and in fact does not even use that term, to further
emphasize its restrictive policy on the matter, in contrast to the preceding The foregoing conclusions as to the untoward effect of a marriage after an invalid
legislation that admitted absolute divorce on grounds of adultery of the wife or divorce are in accord with the previous doctrines and rulings of this court on the
concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code subject, particularly those that were rendered under our laws prior to the approval
only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of
that case, it expressly prescribes that "the marriage bonds shall not be severed" legal history, our statutes did not recognize divorces a vinculo before 1917, when
(Art. 106, subpar. 1). Act 2710 became effective; and the present Civil Code of the Philippines, in
disregarding absolute divorces, in effect merely reverted to the policies on the
For the Philippine courts to recognize and give recognition or effect to a foreign subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of
decree of absolute divorce betiveen Filipino citizens could be a patent violation of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the
the declared public policy of the state, specially in view of the third paragraph of decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in
Article 17 of the Civil Code that prescribes the following: that case:

Prohibitive laws concerning persons, their acts or property, and those As the divorce granted by the French Court must be ignored, it results that
which have for their object public order, policy and good customs, shall not the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905,
be rendered ineffective by laws or judgments promulgated, or by could not legalize their relations; and the circumstance that they
determinations or conventions agreed upon in a foreign country. afterwards passed for husband and wife in Switzerland until her death is
wholly without legal significance. The claims of the very children to
participate in the estate of Samuel Bishop must therefore be rejected. The
Even more, the grant of effectivity in this jurisdiction to such foreign divorce
right to inherit is limited to legitimate, legitimated and acknowledged
decrees would, in effect, give rise to an irritating and scandalous discrimination in
natural children. The children of adulterous relations are wholly excluded.
favor of wealthy citizens, to the detriment of those members of our polity whose
The word "descendants" as used in Article 941 of the Civil Code cannot be
means do not permit them to sojourn abroad and obtain absolute divorces outside
interpreted to include illegitimates born of adulterous relations. (Emphasis
the Philippines.
supplied)
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have
Except for the fact that the successional rights of the children, begotten from
appeared in the Nevada divorce court. Primarily because the policy of our law
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the
cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and
case at bar, the Gmur case is authority for the proposition that such union is
additionally, because the mere appearance of a non-resident consort cannot confer
adulterous in this jurisdiction, and, therefore, justifies an action for legal separation
jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).
on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escaño's divorce and second marriage
True it is that our ruling gives rise to anomalous situations where the status of a
are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez
person (whether divorced or not) would depend on the territory where the
must be declared to be existent and undissolved. It follows, likewise, that her
refusal to perform her wifely duties, and her denial of consortium and her desertion
question arises. Anomalies of this kind are not new in the Philippines, and the SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes
answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: between the right of a parent to interest himself in the marital affairs of his
child and the absence of rights in a stranger to intermeddle in such affairs.
The hardship of the existing divorce laws in the Philippine Islands are well However, such distinction between the liability of parents and that of
known to the members of the Legislature. It is the duty of the Courts to strangers is only in regard to what will justify interference. A parent isliable
enforce the laws of divorce as written by Legislature if they are for alienation of affections resulting from his own malicious conduct, as
constitutional. Courts have no right to say that such laws are too strict or where he wrongfully entices his son or daughter to leave his or her spouse,
too liberal. (p. 72) but he is not liable unless he acts maliciously, without justification and
from unworthy motives. He is not liable where he acts and advises his child
The appellant's first assignment of error is, therefore, sustained. in good faith with respect to his child's marital relations in the interest of
his child as he sees it, the marriage of his child not terminating his right and
liberty to interest himself in, and be extremely solicitous for, his child's
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto
welfare and happiness, even where his conduct and advice suggest or
Escaño and his wife, the late Doña Mena Escaño, alienated the affections of their
result in the separation of the spouses or the obtaining of a divorce or
daughter and influenced her conduct toward her husband are not supported by
annulment, or where he acts under mistake or misinformation, or where
credible evidence. The testimony of Pastor Tenchavez about the Escaño's animosity
his advice or interference are indiscreet or unfortunate, although it has
toward him strikes us to be merely conjecture and exaggeration, and are belied by
been held that the parent is liable for consequences resulting from
Pastor's own letters written before this suit was begun (Exh. "2-Escaño" and
recklessness. He may in good faith take his child into his home and afford
"Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the
him or her protection and support, so long as he has not maliciously
defendants for "misjudging them" and for the "great unhappiness" caused by his
enticed his child away, or does not maliciously entice or cause him or her
"impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was
to stay away, from his or her spouse. This rule has more frequently been
admitted to the Escaño house to visit and court Vicenta, and the record shows
applied in the case of advice given to a married daughter, but it is equally
nothing to prove that he would not have been accepted to marry Vicente had he
applicable in the case of advice given to a son.
openly asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such unexpected
event, the parents of Vicenta proposed and arranged that the marriage be Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social
recelebrated in strict conformity with the canons of their religion upon advice that discrimination and with having exerted efforts and pressured her to seek
the previous one was canonically defective. If no recelebration of the marriage annulment and divorce, unquestionably caused them unrest and anxiety, entitling
ceremony was had it was not due to defendants Mamerto Escaño and his wife, but them to recover damages. While this suit may not have been impelled by actual
to the refusal of Vicenta to proceed with it. That the spouses Escaño did not seek to malice, the charges were certainly reckless in the face of the proven facts and
compel or induce their daughter to assent to the recelebration but respected her circumstances. Court actions are not established for parties to give vent to their
decision, or that they abided by her resolve, does not constitute in law an alienation prejudices or spleen.
of affections. Neither does the fact that Vicenta's parents sent her money while she
was in the United States; for it was natural that they should not wish their daughter In the assessment of the moral damages recoverable by appellant Pastor Tenchavez
to live in penury even if they did not concur in her decision to divorce Tenchavez (27 from defendant Vicente Escaño, it is proper to take into account, against his
Am. Jur. 130-132). patently unreasonable claim for a million pesos in damages, that (a) the marriage
was celebrated in secret, and its failure was not characterized by publicity or undue
There is no evidence that the parents of Vicenta, out of improper motives, aided humiliation on appellant's part; (b) that the parties never lived together; and (c)
and abetted her original suit for annulment, or her subsequent divorce; she appears that there is evidence that appellant had originally agreed to the annulment of the
to have acted independently, and being of age, she was entitled to judge what was marriage, although such a promise was legally invalid, being against public policy
best for her and ask that her decisions be respected. Her parents, in so doing, (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact
certainly cannot be charged with alienation of affections in the absence of malice or is a consequence of the indissoluble character of the union that appellant entered
unworthy motives, which have not been shown, good faith being always presumed into voluntarily and with open eyes rather than of her divorce and her second
until the contrary is proved.
marriage. All told, we are of the opinion that appellant should recover P25,000 only Neither party to recover costs.
by way of moral damages and attorney's fees.

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

Summing up, the Court rules:

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

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

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

(4) That an action for alienation of affections against the parents of one consort
does not lie in the absence of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal


separation from defendant Vicenta F. Escaño;

(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant


Tenchavez the amount of P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño
and the estate of his wife, the deceased Mena Escaño, P5,000 by way of damages
and attorneys' fees.
G.R. No. 187495 April 21, 2014 On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a
Joint Resolution,8 finding probable cause for grave threats, less serious physical
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, injuries and rape and recommending that the appropriate criminal information be
vs. filed against the accused-appellant.
EDGAR JUMAWAN, Accused-Appellant.
On July 16, 1999, two Informations for rape were filed before the RTC respectively
DECISION docketed as Criminal Case No. 99-6689 and Criminal Case No. 99-669.10 The
Information in Criminal Case No. 99-668 charged the accused-appellant as follows:
"Among the duties assumed by the husband are his duties to love, cherish and
protect his wife, to give her a home, to provide her with the comforts and the That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa,
necessities of life within his means, to treat her kindly and not cruelly or Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable
inhumanely. He is bound to honor her x x x; it is his duty not only to maintain and Court, the above-named accused by means of force upon person did then and there
support her, but also to protect her from oppression and wrong." 1 wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, her [sic] wife, against the latter[']s will.
REYES, J.:
Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.
Husbands do not have property rights over their wives' bodies. Sexual intercourse,
albeit within the realm of marriage, if not consensual, is rape. This is the clear State Meanwhile the Information in Criminal Case No. 99-669 reads:
policy expressly legislated in Section 266-A of the Revised Penal Code (RPC), as
amended by Republic Act (R.A.) No. 8353 or the Anti-Rape Law of 1997. That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa,
Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable
The Case Court, the above-named accused by means of force upon person did then and there
wilfully, unlawfully and feloniously have carnal knowledge with the private
This is an automatic review2 of the Decision3 dated July 9, 2008 of the Court of complainant, her [sic] wife, against the latter's will.
Appeals (CA) in CA-G.R. CR-HC No. 00353, which affirmed the Judgment4 dated April
1, 2002 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 19, in Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.
Criminal Case Nos. 99-668 and 99-669 convicting him to suffer the penalty of
reclusion perpetua for each count. The accused-appellant was arrested upon a warrant issued on July 21, 1999.11 On
August 18, 1999, the accused-appellant filed a Motion for Reinvestigation,12 which
The Facts was denied by the trial court in an Order13 dated August 19, 1999. On even date,
the accused-appellant was arraigned and he entered a plea of not guilty to both
Accused-appellant and his wife, KKK,5 were married on October 18, 1975. They Ii charges.14
ved together since then and raised their four (4) children 6 as they put up several
businesses over the years. On January 10, 2000, the prosecution filed a Motion to Admit Amended
Information15 averring that the name of the private complainant was omitted in the
On February 19, 1999, KKK executed a Complaint-Affidavit,7 alleging that her original informations for rape. The motion also stated that KKK, thru a Supplemental
husband, the accused-appellant, raped her at 3 :00 a.m. of December 3, 1998 at Affidavit dated November 15, 1999,16 attested that the true dates of commission of
their residence in Phase 2, Villa Ernesto, Gusa, Cagayan de Oro City, and that on the crime are October 16, 1998 and October 1 7, 1998 thereby modifying the dates
December 12, 1998, the accused-appellant boxed her shoulder for refusing to have stated in her previous complaint-affidavit. The motion was granted on January 18,
sex with him. 2000.17 Accordingly, the criminal informations were amended as follows:

Criminal Case No. 99-668:


That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and She wanted to provide a comfortable life for their children; he, on the other hand,
within the jurisdiction of this Honorable Court, the above-named accused by means did not acquiesce with that objective.25
of force upon person did then and there wilfully, unlawfully and feloniously have
carnal knowledge with the private complainant, his wife, [KKK], against the latter's In 1994, KKK and the accused-appellant bought a lot and built a house in Villa
will. Ernesto, Gusa, Cagayan de Oro City.26 Three of the children transferred residence
therein while KKK, the accused-appellant and one of their sons stayed in
Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.18 Dangcagan, Bukidnon. She shuttled between the two places regularly and
sometimes he accompanied her.27 In 1998, KKK stayed in Gusa, Cagayan De Oro City
Criminal Case No. 99-669: most of the days of the week.28 On Wednesdays, she went to Dangcagan, Bukidnon
to procure supplies for the family store and then returned to Cagayan de Oro City
That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and on the same day.29
within the jurisdiction of this Honorable Court, the above-named accused by means
of force upon person did then and there wilfully, unlawfully and feloniously have Conjugal intimacy did not really cause marital problems between KKK and the
carnal knowledge with the private complainant, his wife, [KKK], against the latter's accused-appellant. It was, in fact, both frequent and fulfilling. He treated her well
will. and she, of course, responded with equal degree of enthusiasm. 30However, in 1997,
he started to be brutal in bed. He would immediately remove her panties and, sans
Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.19 any foreplay, insert her penis in her vagina. His abridged method of lovemaking was
physically painful for her so she would resist his sexual ambush but he would
threaten her into submission.31
The accused-appellant was thereafter re-arraigned. He maintained his not guilty
plea to both indictments and a joint trial of the two cases forthwith ensued.
In 1998, KKK and the accused-appellant started quarrelling usually upon his
complaint that she failed to attend to him. She was preoccupied with financial
Version of the prosecution
problems in their businesses and a bank loan. He wanted KKK to stay at home
because "a woman must stay in the house and only good in bed (sic) x x x." She
The prosecution's theory was anchored on the testimonies of KKK, and her
disobeyed his wishes and focused on her goal of providing a good future for the
daughters MMM and 000, which, together with pertinent physical evidence,
children.32
depicted the following events:
Four days before the subject rape incidents or on October 12, 1998, KKK and the
KKK met the accused-appellant at the farm of her parents where his father was one
accused-appellant slept together in Cebu City where the graduation rites of their
of the laborers. They got married after a year of courtship. 20 When their first child,
eldest daughter were held. By October 14, 1998, the three of them were already
MMM, was born, KKK and the accused-appellant put up a sari-sari store.21 Later on,
back in Cagayan de Oro City.33
they engaged in several other businesses -trucking, rice mill and hardware. KKK
managed the businesses except for the rice mill, which, ideally, was under the
On October 16, 1998, the accused-appellant, his wife KKK and their children went
accused-appellant's supervision with the help of a trusted employee. In reality,
about their nightly routine. The family store in their residence was closed at about
however, he merely assisted in the rice mill business by occasionally driving one of
9:00 p.m. before supper was taken. Afterwards, KKK and the children went to the
the trucks to haul goods.22
girls' bedroom at the mezzanine of the house to pray the rosary while the accused-
appellant watched television in the living room. 34 OOO and MMM then prepared
Accused-appellant's keenness to make the businesses flourish was not as fervent as
their beds. Soon after, the accused-appellant fetched KKK and bid her to come with
KKK's dedication. Even the daughters observed the disproportionate labors of their
him to their conjugal bedroom in the third floor of the house. KKK complied. 35
parents.23 He would drive the trucks sometimes but KKK was the one who actively
managed the businesses.24
Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but
she did not lie thereon with the accused-appellant and instead, rested separately in
a cot near the bed. Her reclusive behavior prompted him to ask angrily: "[W]hy are
you lying on the c{o]t[?]", and to instantaneously order: "You transfer here [to] our underwear and covered herself with a blanket.50 However, their breakout from the
bed."36 room was not easy. To prevent KKK from leaving, the accused-appellant blocked the
doorway by extending his arm towards the knob. He commanded KKK to "[S]tay
KKK insisted to stay on the cot and explained that she had headache and abdominal here, you sleep in our room," when the trembling KKK pleaded: "Eddie, allow me to
pain due to her forthcoming menstruation. Her reasons did not appease him and he go out." He then held KKK's hands but she pulled them back. Determined to get
got angrier. He rose from the bed, lifted the cot and threw it against the wall away, MMM leaned against door and embraced her mother tightly as they pushed
causing KKK to fall on the floor. Terrified, KKK stood up from where she fell, took their way out.51
her pillow and transferred to the bed.37
In their bedroom, the girls gave their mother some water and queried her as to
The accused-appellant then lay beside KKK and not before long, expressed his what happened.52 KKK relayed: "[Y]our father is an animal, a beast; he forced me to
desire to copulate with her by tapping his fingers on her lap. She politely declined have sex with him when I'm not feeling well." The girls then locked the door and let
by warding off his hand and reiterating that she was not feeling well.38 her rest."53

The accused-appellant again asserted his sexual yearning and when KKK tried to The accused-appellant's aggression recurred the following night. After closing the
resist by holding on to her panties, he pulled them down so forcefully they tore on family store on October 17, 1998, KKK and the children took their supper. The
the sides.39 KKK stayed defiant by refusing to bend her legs. 40 accused-appellant did not join them since, according to him, he already ate dinner
elsewhere. After resting for a short while, KKK and the children proceeded to the
The accused-appellant then raised KKK's daster,41 stretched her legs apart and girls' bedroom and prayed the rosary. KKK decided to spend the night in the room's
rested his own legs on them. She tried to wrestle him away but he held her hands small bed and the girls were already fixing the beddings when the accused-
and succeeded in penetrating her. As he was carrying out his carnal desires, KKK appellant entered.
continued to protest by desperately shouting: "[D]on 't do that to me because I'm
not feeling well."42 "Why are you sleeping in the room of our children", he asked KKK, who responded
that she preferred to sleep with the children.54 He then scoffed: "Its alright if you
With a concrete wall on one side and a mere wooden partition on the other will not go with me, anyway, there are women that could be paid [P] 1,000.00." She
enclosing the spouses' bedroom,43KKK's pleas were audible in the children's dismissed his comment by turning her head away after retorting: "So be it." After
bedroom where MMM lay awake. that, he left the room.55

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to He returned 15 minutes later56 and when KKK still refused to go with him, he
me, have pity on me,"44 MMM woke up 000 who prodded her to go to their became infuriated. He lifted her from the bed and attempted to carry her out of the
parents' room.45 MMM hurriedly climbed upstairs, vigorously knocked on the door room as he exclaimed: "Why will you sleep here[?] Lets go to our bedroom." When
of her parents' bedroom and inquired: "Pa, why is it that Mama is crying?" 46 The she defied him, he grabbed her short pants causing them to tear apart. 57 At this
accused-appellant then quickly put on his briefs and shirt, partly opened the door point, MMM interfered, "Pa, don't do that to Mama because we are in front of
and said: "[D]on 't interfere because this is a family trouble," before closing it you."58
again.47 Since she heard her mother continue to cry, MMM ignored his father's
admonition, knocked at the bedroom door again, and then kicked it. 48 A furious The presence of his children apparently did not pacify the accused-appellant who
accused-appellant opened the door wider and rebuked MMM once more: "Don't yelled, "[E]ven in front of you, I can have sex of your mother [sic J because I'm the
interfere us. Go downstairs because this is family trouble!" Upon seeing KKK head of the family." He then ordered his daughters to leave the room. Frightened,
crouching and crying on top of the bed, MMM boldly entered the room, the girls obliged and went to the staircase where they subsequently heard the pleas
approached her mother and asked: "Ma, why are you crying?" before asking her of their helpless mother resonate with the creaking bed.59
father: "Pa, what happened to Mama why is it that her underwear is torn[?]" 49
The episodes in the bedroom were no less disturbing. The accused-appellant
When MMM received no definite answers to her questions, she helped her mother forcibly pulled KKK's short pants and panties. He paid no heed as she begged,
get up in order to bring her to the girls' bedroom. KKK then picked up her tom
"[D]on 't do that to me, my body is still aching and also my abdomen and I cannot truck. They finished loading at 3 :00 p.m. The accused-appellant then instructed
do what you wanted me to do [sic]. I cannot withstand sex." 60 Equia to proceed to Maluko, Manolo Fortich, Bukidnon while the former attended a
fiesta in New Cebu, Kianggat, Dangcagan, Bukidnon. At around 4:00 p.m., Equia,
After removing his own short pants and briefs, he flexed her legs, held her hands, together with a helper and a mechanic, left for Maluko in order to tow the stalled
mounted her and forced himself inside her. Once gratified, the accused-appellant truck left there by the accused-appellant in October 7 and thereafter, bring it to
put on his short pants and briefs, stood up, and went out of the room laughing as he Cagayan de Oro City together with the separate truck loaded with com.
conceitedly uttered: "[I]t s nice, that is what you deserve because you are [a] flirt or
fond of sex." He then retreated to the masters' bedroom. 61 They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck
around and hoist it to the towing bar of the other truck. At around 10:00 p.m., the
Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried accused-appellant arrived in Maluko. The four of them then proceeded to Cagayan
upstairs but found the door locked. MMM pulled out a jalousie window, inserted de Oro City where they arrived at 3 :00 a.m. of October 18, 1998. The accused-
her arm, reached for the doorknob inside and disengaged its lock. Upon entering appellant went to Gusa while the other three men brought the damaged truck to
the room, MMM and OOO found their mother crouched on the bed with her hair Cugman.65
disheveled. The girls asked: "Ma, what happened to you, why are you crying?" KKK
replied: "[Y}our father is a beast and animal, he again forced me to have sex with The accused-appellant asserted that KKK merely fabricated the rape charges as her
him even if I don't feel well. "62 revenge because he took over the control and management of their businesses as
well as the possession of their pick-up truck in January 1999. The accused-appellant
Version of the defense was provoked to do so when she failed to account for their bank deposits and
business earnings. The entries in their bank account showed the balance of
The defense spun a different tale. The accused-appellant's father owned a land ₱3,190,539.83 on October 31, 1996 but after only a month or on November 30,
adjacent to that of KKK's father. He came to know KKK because she brought food for 1996, the amount dwindled to a measly ₱9,894.88. 66 Her failure to immediately
her father's laborers. When they got married on October 18, 1975, he was a high report to the police also belies her rape allegations.67
school graduate while she was an elementary graduate.
KKK wanted to cover-up her extra-marital affairs, which the accused-appellant
Their humble educational background did not deter them from pursuing a gradually detected from her odd behavior. While in Cebu on October 12, 1998 for
comfortable life. Through their joint hard work and efforts, the couple gradually MMM's graduation rites, the accused-appellant and KKK had sexual intercourse. He
acquired personal properties and established their own businesses that included a was surprised when his wife asked him to get a napkin to wipe her after having sex.
rice mill managed by the accused-appellant. He also drove their trucks that hauled He tagged her request as "high-tech," because they did not do the same when they
coffee, copra, or com.63 had sex in the past. KKK had also become increasingly indifferent to him. When he
arrives home, it was an employee, not her, who opened the door and welcomed
him. She prettied herself and would no longer ask for his permission whenever she
The accused-appellant denied raping his wife on October 16 and 17, 1998. He
went out.68
claimed that on those dates he was in Dangcagan, Bukidnon, peeling com. On
October 7, his truck met an accident somewhere in Angeles Ranch, Maluko, Manolo
Fortich, Bukidnon. He left the truck by the roadside because he had to attend Bebs,69 KKK's cousin and a cashier in their Bukidnon store, gave the accused-
MMM's graduation in Cebu on October 12 with KKK. When they returned to appellant several love letters purportedly addressed to Bebs but were actually
Bukidnon on October 14, he asked KKK and MMM to proceed to Cagayan de Oro intended for KKK.70
City and just leave him behind so he can take care of the truck and buy some com. 64
KKK had more than ten paramours some of whom the accused-appellant came to
Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 know as: Arsenio, Jong-Jong, Joy or Joey, somebody from the military or the
corroborated the above claims. According to him, on October 16, 1998, the Philippine National Police, another one is a government employee, a certain
accused-appellant was within the vicinity of the rice mill's loading area in Fernandez and three other priests.71 Several persons told him about the paramours
Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he and the of his wife but he never confronted her or them about it because he trusted her. 72
accused-appellant were in Dangcagan, Bukidnon, loading sacks of com into the
What further confirmed his suspicions was the statement made by OOO on Ruling of the CA
November 2, 1998. At that time, OOO was listening loudly to a cassette player.
Since he wanted to watch a television program, he asked OOO to tum down the In its Decision78 dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA
volume of the cassette player. She got annoyed, unplugged the player, spinned held that Section 14, Rule 110 of the Rules of Criminal Procedure, sanctioned the
around and hit the accused-appellant's head with the socket. His head bled. An amendment of the original informations. Further, the accused-appellant was not
altercation between the accused-appellant and KKK thereafter followed because prejudiced by the amendment because he was re-arraigned with respect to the
the latter took OOO's side. During the argument, OOO blurted out that KKK was amended informations.
better off without the accused-appellant because she had somebody young,
handsome, and a businessman unlike the accused-appellant who smelled bad, and The CA found that the prosecution, through the straightforward testimony of the
was old, and ugly.73 victim herself and the corroborative declarations of MMM and OOO, was able to
establish, beyond reasonable doubt, all the elements of rape under R.A. No. 8353.
KKK also wanted their property divided between them with three-fourths thereof The accused-appellant had carnal knowledge of KKK by using force and intimidation.
going to her and one-fourth to the accused-appellant. However, the separation did
not push through because the accused-appellant's parents intervened.74 Thereafter, The CA also ruled that KKK's failure to submit herself to medical examination did
KKK pursued legal separation from the accused-appellant by initiating Barangay not negate the commission of the crime because a medical certificate is not
Case No. 00588-99 before the Office of Lupong Tagapamayapa of Gusa, Cagayan de necessary to prove rape.
Oro City and thereafter obtaining a Certificate to File Action dated February 18,
1999.75
The CA rejected the accused-appellant's argument that since he and KKK are
husband and wife with mutual obligations of and right to sexual intercourse, there
Ruling of the RTC must be convincing physical evidence or manifestations of the alleged force and
intimidation used upon KKK such as bruises. The CA explained that physical showing
In its Judgment76 dated April 1, 2002, the RTC sustained the version proffered by the of external injures is not indispensable to prosecute and convict a person for rape;
prosecution by giving greater weight and credence to the spontaneous and what is necessary is that the victim was forced to have sexual intercourse with the
straightforward testimonies of the prosecution's witnesses. The trial court also accused.
upheld as sincere and genuine the two daughters' testimonies, as it is not natural in
our culture for daughters to testify against their own father for a crime such as rape In addition, the CA noted that the fact that KKK and the accused-appellant are
if the same was not truly committed. spouses only reinforces the truthfulness of KKK's accusations because no wife in her
right mind would accuse her husband of having raped her if it were not true.
The trial court rejected the version of the defense and found unbelievable the
accused-appellant's accusations of extra-marital affairs and money squandering The delay in the filing of the rape complaint was sufficiently explained by KKK when
against KKK. The trial court shelved the accused-appellant's alibi for being premised she stated that she only found out that a wife may charge his husband with rape
on inconsistent testimonies and the contradicting declarations of the other defense when the fiscal investigating her separate complaint for grave threats and physical
witness, Equia, as to the accused-appellant's actual whereabouts on October 16, injuries told her about it.
1998. Accordingly, the RTC ruling disposed as follows:
Finally, the CA dismissed the accused-appellant's alibi for lack of convincing
WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond evidence that it was physically impossible for him to be at his residence in Cagayan
reasonable doubt of the two (2) separate charges of rape and hereby sentences him de Oro City at the time of the commission of the crimes, considering that
to suffer the penalty of reclusion perpetua for each, to pay complainant Dangcagan, Bukidnon, the place where he allegedly was, is only about four or five
[P]50,000.00 in each case as moral damages, indemnify complainant the sum of hours away. Accordingly, the decretal portion of the decision read:
(P]75,000.00 in each case, [P]50,000.00 as exemplary damages and to pay the costs.
WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby
SO ORDERED.77 AFFIRMED.
SO ORDERED.79 A husband had the right to chastise his wife and beat her if she misbehaved,
allowing him to bring order within the family.90
Hence, the present review. In the Court Resolution80 dated July 6, 2009, the Court
notified the parties that, if they so desire, they may file their respective This was supplanted by the marital unity theory, which espoused a similar concept.
supplemental briefs. In a Manifestation and Motion81 dated September 4, 2009, the Upon marrying, the woman becomes one with her husband. She had no right to
appellee, through the Office of the Solicitor General, expressed that it intends to make a contract, sue another, own personal property or write a will.91
adopt its Brief before the CA. On April 16, 2012, the accused-appellant, through
counsel, filed his Supplemental Brief, arguing that he was not in Cagayan de Oro II. The marital exemption rule
City when the alleged rape incidents took place, and the presence of force, threat or
intimidation is negated by: (a) KKK's voluntary act of going with him to the conjugal In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived
bedroom on October 16, 1998; (b) KKK's failure to put up resistance or seek help the irrevocable implied consent theory that would later on emerge as the marital
from police authorities; and ( c) the absence of a medical certificate and of blood exemption rule in rape. He stated that:
traces in KKK's panties.82
[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife,
Our Ruling for by their mutual matrimonial consent and contract the wife hath given up herself
in this kind unto her husband, which she cannot retract.92
I. Rape and marriage: the historical connection
The rule was observed in common law countries such as the United States of
The evolution of rape laws is actually traced to two ancient English practices of America (USA) and England. It gives legal immunity to a man who forcibly sexually
'bride capture' whereby a man conquered a woman through rape and 'stealing an assaults his wife, an act which would be rape if committed against a woman not his
heiress' whereby a man abducted a woman and married her.83 wife.93 In those jurisdictions, rape is traditionally defined as "the forcible
penetration of the body of a woman who is not the wife of the perpetrator." 94
The rape laws then were intended not to redress the violation of the woman's
chastity but rather to punish the act of obtaining the heiress' property by forcible The first case in the USA that applied the marital exemption rule was
marriage84 or to protect a man's valuable interest in his wife's chastity or her Commonwealth v. Fogerty95 promulgated in 1857. The Supreme Judicial Court of
daughter's virginity.85 Massachusetts pronounced that it would always be a defense in rape to show
marriage to the victim. Several other courts adhered to a similar rationale with all of
If a man raped an unmarried virgin, he was guilty of stealing her father's property them citing Hale's theory as basis.96
and if a man raped his wife, he was merely using his property.86
The rule was formally codified in the Penal Code of New York in 1909. A husband
Women were subjugated in laws and society as objects or goods and such was endowed with absolute immunity from prosecution for the rape of his
treatment was justified under three ideologies. wife.97 The privilege was personal and pertained to him alone. He had the marital
right to rape his wife but he will be liable when he aids or abets another person in
Under the chattel theory prevalent during the 6th century, a woman was the raping her.98
property of her father until she marries to become the property of her husband. 87 If
a man abducted an unmarried woman, he had to pay the owner, and later buy her In the 1970s, the rule was challenged by women's movements in the USA
from the owner; buying and marrying a wife were synonymous. 88 demanding for its abolition for being violative of married women's right to be
equally protected under rape laws.99
From the 11th century to the 16th century, a woman lost her identity upon
marriage and the law denied her political power and status under the feudal In 1978, the rule was qualified by the Legislature in New York by proscribing the
doctrine of coverture.89 application of the rule in cases where the husband and wife are living apart
pursuant to a court order "which by its terms or in its effects requires such living the wife is mentally or physically impaired, unconscious, asleep, or legally unable to
apart," or a decree, judgment or written agreement of separation. 100 consent.103

In 1983, the marital exemption rule was abandoned in New York when the Court of III. Marital Rape in the Philippines
Appeals of New York declared the same unconstitutional in People v. Liberta101 for
lack of rational basis in distinguishing between marital rape and non-marital rape. Interestingly, no documented case on marital rape has ever reached this Court until
The decision, which also renounced Hale's irrevocable implied consent theory, now. It appears, however, that the old provisions of rape under Article 335 of the
ratiocinated as follows: RPC adhered to Hale's irrevocable implied consent theory, albeit in a limited form.
According to Chief Justice Ramon C. Aquino,104 a husband may not be guilty of rape
We find that there is no rational basis for distinguishing between marital rape and under Article 335 of Act No. 3815 but, in case there is legal separation, the husband
nonmarital rape. The various rationales which have been asserted in defense of the should be held guilty of rape if he forces his wife to submit to sexual intercourse.105
exemption are either based upon archaic notions about the consent and property
rights incident to marriage or are simply unable to withstand even the slightest In 1981, the Philippines joined 180 countries in ratifying the United Nations
scrutiny. We therefore declare the marital exemption for rape in the New York Convention on the Elimination of all Forms of Discrimination Against Women (UN-
statute to be unconstitutional. CEDAW).106 Hailed as the first international women's bill of rights, the CEDAW is the
first major instrument that contains a ban on all forms of discrimination against
Lord Hale's notion of an irrevocable implied consent by a married woman to sexual women. The Philippines assumed the role of promoting gender equality and
intercourse has been cited most frequently in support of the marital exemption. x x women's empowerment as a vital element in addressing global concerns. 107 The
x Any argument based on a supposed consent, however, is untenable. Rape is not country also committed, among others, to condemn discrimination against women
simply a sexual act to which one party does not consent. Rather, it is a degrading, in all its forms, and agreed to pursue, by all appropriate means and without delay, a
violent act which violates the bodily integrity of the victim and frequently causes policy of eliminating discrimination against women and, to this end, undertook:
severe, long-lasting physical and psychic harm x x x. To ever imply consent to such
an act is irrational and absurd. Other than in the context of rape statutes, marriage (a) To embody the principle of the equality of men and women in their
has never been viewed as giving a husband the right to coerced intercourse on national constitutions or other appropriate legislation if not yet
demand x x x. Certainly, then, a marriage license should not be viewed as a license incorporated therein and to ensure, through law and other appropriate
for a husband to forcibly rape his wife with impunity. A married woman has the means, the practical realization of this principle;
same right to control her own body as does an unmarried woman x x x. If a husband
feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should (b) To adopt appropriate legislative and other measures, including
seek relief in the courts governing domestic relations, not in "violent or forceful sanctions where appropriate, prohibiting all discrimination against women;
self-help x x x."
xxxx
The other traditional justifications for the marital exemption were the common-law
doctrines that a woman was the property of her husband and that the legal
(f) To take all appropriate measures, including legislation, to modify or
existence of the woman was "incorporated and consolidated into that of the
abolish existing laws, regulations, customs and practices which constitute
husband x x x." Both these doctrines, of course, have long been rejected in this
discrimination against women;
State. Indeed, "[nowhere] in the common-law world - [or] in any modem society - is
a woman regarded as chattel or demeaned by denial of a separate legal identity and
(g) To repeal all national penal provisions which constitute discrimination
the dignity associated with recognition as a whole human being x x x."102 (Citations
against women.108
omitted)

In compliance with the foregoing international commitments, the Philippines


By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the
enshrined the principle of gender equality in the 1987 Constitution specifically in
District of Columbia, outlawing the act without exemptions. Meanwhile, the 33
Sections 11 and 14 of Article II thereof, thus:
other states granted some exemptions to a husband from prosecution such as when
Sec. 11. The State values the dignity of every human person and guarantees full b) When the offended party is deprived of reason or otherwise
respect for human rights. unconscious;

xxxx c) By means of fraudulent machination or grave abuse of authority; and

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure d) When the offended party is under twelve (12) years of age or is
the fundamental equality before the law of women and men. The Philippines also demented, even though none of the circumstances mentioned above be
acceded to adopt and implement the generally accepted principles of international present.
law such as the CEDA W and its allied issuances, viz:
The explicit intent to outlaw marital rape is deducible from the records of the
Article II, Section 2. The Philippines renounces war as an instrument of national deliberations of the 10th Congress on the law's progenitor's, House Bill No. 6265
policy, and adopts the generally accepted principles of international law as part of and Senate Bill No. 650. In spite of qualms on tagging the crime as 'marital rape' due
the law of the land and adheres to the policy of peace, equality, justice, freedom, to conservative Filipino impressions on marriage, the consensus of our lawmakers
cooperation, and amity with all nations. (Emphasis ours) was clearly to include and penalize marital rape under the general definition of
'rape,' viz:
The Legislature then pursued the enactment of laws to propagate gender equality.
In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article 335 of MR. DAMASING: Madam Speaker, Your Honor, one more point
the RPC.109 The law reclassified rape as a crime against person and removed it from
the ambit of crimes against chastity. More particular to the present case, and of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never
perhaps the law's most progressive proviso is the 2nd paragraph of Section 2 agreed to marital rape. But under Article 266-C, it says here: "In case it is the legal
thereof recognizing the reality of marital rape and criminalizing its perpetration, viz: husband who is the offender... " Does this presuppose that there is now marital
rape? x x x.
Article 266-C. Effect of Pardon. - The subsequent valid marriage between the
offended party shall extinguish the criminal action or the penalty imposed. MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years
of private practice in the legal profession, Madam Speaker, and I believe that I can
In case it is the legal husband who is the offender, the subsequent forgiveness by put at stake my license as a lawyer in this jurisdiction there is no law that prohibits a
the wife as the offended party shall extinguish the criminal action or the penalty: husband from being sued by the wife for rape. Even jurisprudence, we don't have
Provided, That the crime shall not be extinguished or the penalty shall not be any jurisprudence that prohibits a wife from suing a husband. That is why even if we
abated if the marriage is void ab initio. don't provide in this bill expanding the definition of crime that is now being
presented for approval, Madam Speaker, even if we don't provide here for marital
Read together with Section 1 of the law, which unqualifiedly uses the term "man" in rape, even if we don't provide for sexual rape, there is the right of the wife to go
defining rape, it is unmistakable that R.A. No. 8353 penalizes the crime without against the husband. The wife can sue the husband for marital rape and she cannot
regard to the rapist's legal relationship with his victim, thus: be prevented from doing so because in this jurisdiction there is no law that
prohibits her from doing so. This is why we had to put second paragraph of 266-C
Article 266-A. Rape: When And How Committed. - Rape is committed: because it is the belief of many of us. x x x, that if it is true that in this jurisdiction
there is marital rape even if we don't provide it here, then we must provide for
something that will unify and keep the cohesion of the family together that is why
1) By a man who shall have carnal knowledge of a woman under any of the
we have the second paragraph.
following circumstances:

MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically
a) Through force, threat, or intimidation;
House Bill No. 6265 our provision on a husband forcing the wife is not marital rape,
it is marital sexual assault.
MR. LARA: That is correct, Madam Speaker. marital rape, acceptance is easy. Because parang ang marital rape, married na nga
kami. I cannot have sex. No, what it is saying is you're [the] husband but you cannot
MR. DAMASING: But here it is marital rape because there is no crime of sexual beat me up. x x x. That's why to me it's not alarming. It was just a way of saying
assault. So, Your Honor, direct to the point, under Article 266-C, is it our you're [the] husband, you cannot say when I am charged with rape x x x.
understanding that in the second paragraph, quote: "In case it is the legal husband
who is the offender, this refers to marital rape filed against the husband? Is that PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]
correct?
HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not
MR. LARA: No, Madam Speaker, not entirely, no. The answer is no. mean you can have carnal knowledge by force[,] threat or intimidation or by
depriving your wife reason, a grave abuse of authority, I don't know how that
MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it? cannot apply. Di ba yung, or putting an instrument into the, yun ang sinasabi ko
lang, it is not meant to have another classification of rape. It is all the same
MR. LARA: Sexual assault, Madam Speaker. definition x x x.

MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that
stated that. Because under 1 and 2 it is all denominated as rape, there is no crime of this rule is implicit already in the first proviso. It implies na there is an instance
sexual assault. That is why I am sorry that our House version which provided for when a husband can be charged [with] rape x x x.
sexual assault was not carried by the Senate version because all sexual crimes under
this bicameral conference committee report are all now denominated as rape HON. ROXAS: Otherwise, silent na.
whether the penalty is from reclusion perpetua to death or whether the penalty is
only prision mayor. So there is marital rape, Your Honor, is that correct? HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is
understood that this rule of evidence is now transport[ed], put into 266-F, the
MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of effect of pardon.
punishing the husband who forces the wife even to 30 years imprisonment. But
please do not call it marital rape, call it marital sexual assault because of the PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove
sanctity of marriage. x x x.110 (Emphasis ours) marital rape.

HON. APOSTOL: In our version, we did not mention marital rape but marital rape is HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain
not excluded. the one on page 8, the effect of pardon. x x x [I]t is inferred but we leave it because
after all it is just a rule of evidence. But I think we should understand that a husband
HON. ROCO: Yeah. No. But I think there is also no specific mention. cannot beat at his wife to have sex. Di ha? I think that should be made clear. x x x.

HON. APOSTOL: No. No. No. Silent lang 'yung marital rape. HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is
that if you're [the] legal husband, Jesus Christ, don't beat up to have sex. I almost
HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can want, you are my wife, why do you have to beat me up.
be implicitly contained in the second paragraph. x x x So marital rape actually was in
the House version x x x. But it was not another definition of rape. You will notice, it So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I
only says, that because you are the lawful husband does not mean that you cannot mean, we can face up, I hope, to the women and they would understand that it is
commit rape. Theoretically, I mean, you can beat up your wife until she's blue. And half achieved.
if the wife complains she was raped, I guess that, I mean, you just cannot raise the
defense x x x[:] I am the husband. But where in the marriage contract does it say HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or
that I can beat you up? That's all it means. That is why if we stop referring to it as creating a new crime but instead, we are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence B. "Sexual violence" refers to an act which is sexual in nature, committed
the fact that he is husband is not, does not negate.111 against a woman or her child. It includes, but is not limited to:

CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as
only disagreement now is where to place it. Let us clear this matter. There are two a sex object, making demeaning and sexually suggestive remarks, physically
suggestions now on marital rape. One is that it is rape if it is done with force or attacking the sexual parts of the victim's body, forcing her/him to watch obscene
intimidation or any of the circumstances that would define rape x x x immaterial. publications and indecent shows or forcing the woman or her child to do indecent
The fact that the husband and wife are separated does not come into the picture. acts and/or make films thereof, forcing the wife and mistress/lover to live in the
So even if they are living under one roof x x x for as long as the attendant conjugal home or sleep together in the same room with the abuser;
circumstances of the traditional rape is present, then that is rape. 112
b) acts causing or attempting to cause the victim to engage in any sexual activity by
PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on force, threat of force, physical or other harm or threat of physical or other harm or
marital rape, it does not actually change the meaning of rape. It merely erases the coercion;
doubt in anybody's mind, whether or not rape can indeed be committed by the
husband against the wife. So the bill really says, you having been married to one c) Prostituting the woman or child.
another is not a legal impediment. So I don't really think there is any need to
change the concept of rape as defined presently under the revised penal code. This Statistical figures confirm the above characterization. Emotional and other forms of
do[es] not actually add anything to the definition of rape. It merely says, it is merely non-personal violence are the most common type of spousal violence accounting
clarificatory. That if indeed the wife has evidence to show that she was really brow for 23% incidence among ever-married women. One in seven ever-married women
beaten, or whatever or forced or intimidated into having sexual intercourse against experienced physical violence by their husbands while eight percent (8%)
her will, then the crime of rape has been committed against her by the husband, experienced sexual violence.115
notwithstanding the fact that they have been legally married. It does not change
anything at all, Mr. Chairman.
IV. Refutation of the accused-appellant's arguments

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x. 113


The crux of the accused-appellant's plea for acquittal mirrors the irrevocable
implied consent theory. In his appeal brief before the CA, he posits that the two
The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed incidents of sexual intercourse, which gave rise to the criminal charges for rape,
by R.A. No. 9262,114 which regards rape within marriage as a form of sexual violence were theoretically consensual, obligatory even, because he and the victim, KKK,
that may be committed by a man against his wife within or outside the family were a legally married and cohabiting couple. He argues that consent to copulation
abode, viz: is presumed between cohabiting husband and wife unless the contrary is proved.

Violence against women and their children refers to any act or a series of acts The accused-appellant further claims that this case should be viewed and treated
committed by any person against a woman who is his wife, former wife, or against a differently from ordinary rape cases and that the standards for determining the
woman with whom the person has or had a sexual or dating relationship, or with presence of consent or lack thereof must be adjusted on the ground that sexual
whom he has a common child, or against her child whether legitimate or community is a mutual right and obligation between husband and wife. 116
illegitimate, within or without the family abode, which result in or is likely to result
in. physical, sexual, psychological harm or suffering, or economic abuse including
The contentions failed to muster legal and rational merit.
threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation
of liberty. It includes, but is not limited to, the following acts:
The ancient customs and ideologies from which the irrevocable implied consent
theory evolved have already been superseded by modem global principles on the
A. "Physical Violence" refers to acts that include bodily or physical harm;
equality of rights between men and women and respect for human dignity
established in various international conventions, such as the CEDAW. The
Philippines, as State Party to the CEDAW, recognized that a change in the traditional A woman is no longer the chattel-antiquated practices labeled her to be. A husband
role of men as well as the role of women in society and in the family is needed to who has sexual intercourse with his wife is not merely using a property, he is
achieve full equality between them. Accordingly, the country vowed to take all fulfilling a marital consortium with a fellow human being with dignity equal 120 to
appropriate measures to modify the social and cultural patterns of conduct of men that he accords himself. He cannot be permitted to violate this dignity by coercing
and women, with a view to achieving the elimination of prejudices, customs and all her to engage in a sexual act without her full and free consent. Surely, the
other practices which are based on the idea of the inferiority or the superiority of Philippines cannot renege on its international commitments and accommodate
either of the sexes or on stereotyped roles for men and women. 117 One of such conservative yet irrational notions on marital activities121 that have lost their
measures is R.A. No 8353 insofar as it eradicated the archaic notion that marital relevance in a progressive society.
rape cannot exist because a husband has absolute proprietary rights over his wife's
body and thus her consent to every act of sexual intimacy with him is always It is true that the Family Code,122 obligates the spouses to love one another but this
obligatory or at least, presumed. rule sanctions affection and sexual intimacy, as expressions of love, that are both
spontaneous and mutual123 and not the kind which is unilaterally exacted by force
Another important international instrument on gender equality is the UN or coercion.
Declaration on the Elimination of Violence Against Women, which was
Promulgated118 by the UN General Assembly subsequent to the CEDA W. The Further, the delicate and reverent nature of sexual intimacy between a husband
Declaration, in enumerating the forms of gender-based violence that constitute acts and wife excludes cruelty and coercion. Sexual intimacy brings spouses wholeness
of discrimination against women, identified 'marital rape' as a species of sexual and oneness. It is a gift and a participation in the mystery of creation. It is a deep
violence, viz: sense of spiritual communion. It is a function which enlivens the hope of
procreation and ensures the continuation of family relations. It is an expressive
Article 1 interest in each other's feelings at a time it is needed by the other and it can go a
long way in deepening marital relationship.124 When it is egoistically utilized to
For the purposes of this Declaration, the term "violence against women" means any despoil marital union in order to advance a felonious urge for coitus by force,
act of gender-based violence that results in, or is likely to result in, physical, sexual violence or intimidation, the Court will step in to protect its lofty purpose, vindicate
or psychological harm or suffering to women, including threats of such acts, justice and protect our laws and State policies. Besides, a husband who feels
coercion or arbitrary deprivation of liberty, whether occurring in public or in private aggrieved by his indifferent or uninterested wife's absolute refusal to engage in
life. sexual intimacy may legally seek the court's intervention to declare her
psychologically incapacitated to fulfill an essential marital obligation.125 But he
Article 2 cannot and should not demand sexual intimacy from her coercively or violently.

Violence against women shall be understood to encompass, but not be limited to, Moreover, to treat marital rape cases differently from non-marital rape cases in
the following: terms of the elements that constitute the crime and in the rules for their proof,
infringes on the equal protection clause. The Constitutional right to equal
protection of the laws126 ordains that similar subjects should not be treated
(a) Physical, sexual and psychological violence occurring in the family, including
differently, so as to give undue favor to some and unjustly discriminate against
battering, sexual abuse of female children in the household, dowry-related violence,
others; no person or class of persons shall be denied the same protection of laws,
marital rape, female genital mutilation and other traditional practices harmful to
which is enjoyed, by other persons or other classes in like circumstances. 127
women, non-spousal violence and violence related to exploitation;119 (Emphasis
ours)
As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to:
(a) rape, as traditionally known; (b) sexual assault; and (c) marital rape or that
Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within
where the victim is the perpetrator's own spouse. The single definition for all three
marriage. A man who penetrates her wife without her consent or against her will
forms of the crime shows that the law does not distinguish between rape
commits sexual violence upon her, and the Philippines, as a State Party to the CEDA
committed in wedlock and those committed without a marriage. Hence, the law
W and its accompanying Declaration, defines and penalizes the act as rape under
R.A. No. 8353.
affords protection to women raped by their husband and those raped by any other The evidence for the prosecution was
man alike. based on credible witnesses who gave
equally credible testimonies
The posture advanced by the accused-appellant arbitrarily discriminates against
married rape victims over unmarried rape victims because it withholds from In rape cases, the conviction of the accused rests heavily on the credibility of the
married women raped by their husbands the penal redress equally granted by law victim. Hence, the strict mandate that all courts must examine thoroughly the
to all rape victims. testimony of the offended party. While the accused in a rape case may be convicted
solely on the testimony of the complaining witness, courts are, nonetheless, duty-
Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting bound to establish that their reliance on the victim's testimony is justified. Courts
the argument akin to those raised by herein accused-appellant. A marriage license must ensure that the testimony is credible, convincing, and otherwise consistent
should not be viewed as a license for a husband to forcibly rape his wife with with human nature. If the testimony of the complainant meets the test of
impunity. A married woman has the same right to control her own body, as does an credibility, the accused may be convicted on the basis thereof.131
unmarried woman.128 She can give or withhold her consent to a sexual intercourse
with her husband and he cannot unlawfully wrestle such consent from her in case It is settled that the evaluation by the trial court of the credibility of witnesses and
she refuses. their testimonies are entitled to the highest respect. This is in view of its inimitable
opportunity to directly observe the witnesses and their deportment, conduct and
Lastly, the human rights of women include their right to have control over and attitude, especially during cross-examination. Thus, unless it is shown that its
decide freely and responsibly on matters related to their sexuality, including sexual evaluation was tainted with arbitrariness or certain facts of substance and value
and reproductive health, free of coercion, discrimination and violence.129 Women have been plainly overlooked, misunderstood, or misapplied, the same will not be
do not divest themselves of such right by contracting marriage for the simple disturbed on appeal.132
reason that human rights are inalienable.130
After approximating the perspective of the trial court thru a meticulous scrutiny of
In fine, since the law does not separately categorize marital rape and non-marital the entire records of the trial proceedings and the transcript of each witnesses'
rape nor provide for different definition or elements for either, the Court, tasked to testimony, the Court found no justification to disturb its findings.
interpret and apply what the law dictates, cannot trudge the forbidden sphere of
judicial legislation and unlawfully divert from what the law sets forth. Neither can Rather, the Court observed that KKK and her testimony were both credible and
the Court frame distinct or stricter evidentiary rules for marital rape cases as it spontaneous. Hailed to the witness stand on six separate occasions, KKK never
would inequitably burden its victims and unreasonably and irrationally classify them wavered neither did her statements vacillate between uncertainty and certitude.
differently from the victims of non-marital rape. She remained consistent, categorical, straightforward, and candid during the
rigorous cross-examination and on rebuttal examination, she was able to
Indeed, there exists no legal or rational reason for the Court to apply the law and convincingly explain and debunk the allegations of the defense.
the evidentiary rules on rape any differently if the aggressor is the woman's own
legal husband. The elements and quantum of proof that support a moral certainty She vividly recounted how the accused-appellant forced her to have sex with him
of guilt in rape cases should apply uniformly regardless of the legal relationship despite her refusal on October 16, 1998. He initially ordered her to sleep beside him
between the accused and his accuser. in their conjugal bed by violently throwing the cot where she was resting. In order
not to aggravate his temper, KKK obeyed. On the bed, he insinuated for them to
Thus, the Court meticulously reviewed the present case in accordance with the have sex. When she rejected his advances due to abdominal pain and headache, his
established legal principles and evidentiary policies in the prosecution and request for intimacy transformed into a stubborn demand. Unyielding, KKK held her
resolution of rape cases and found that no reversible error can be imputed to the panties but the accused-appellant forcibly pulled them down. The tug caused the
conviction meted the accused-appellant. small clothing to tear apart. She reiterated that she was not feeling well and begged
him to stop. But no amount of resistance or begging subdued him. He flexed her
two legs apart, gripped her hands, mounted her, rested his own legs on hers and
inserted his penis into her vagina. She continued pleading but he never desisted. 133
Her accurate recollection of the second rape incident on October 1 7, 1998 is Q How did he manifest that he wanted to have sex with you?
likewise unmistakable. After the appalling episode in the conjugal bedroom the
previous night, KKK decided to sleep in the children's bedroom. While her daughters A He put his hand on my lap and asked me to have sex with him but I warded off his
were fixing the beddings, the accused-appellant barged into the room and berated hand.
her for refusing to go with him to their conjugal bedroom. When KKK insisted to
stay in the children's bedroom, the accused-appellant got angry and pulled her up. Q Can you demonstrate to this Court how did he use his hand?
MMM's attempt to pacify the accused-appellant further enraged him. He reminded
them that as the head of the family he could do whatever he wants with his wife. To
A Yes. "witness demonstrating on how the accused used his finger by touching or
demonstrate his role as patriarch, he ordered the children to go out of the room
knocking her lap which means that he wanted to have sex."
and thereafter proceeded to force KKK into sexual intercourse. He forcibly pulled
down her short pants and panties as KKK begged "Dont do that to me, my body is
Q So, what did you do after that?
still aching and also my abdomen and I cannot do what you wanted me to do. I
cannot withstand sex."134 But her pleas fell on deaf ears. The accused-appellant
removed his shorts and briefs, spread KKK's legs apart, held her hands, mounted her A I warded off his hand and refused because I was not feeling well. (at this juncture
and inserted his penis into her vagina. After gratifying himself, he got dressed, left the witness is sobbing)
the room as he chuckled: "Its nice, that is what you deserve because you are [a] flirt
or fond of sex."135 Q So, what did your husband do when you refused him to have sex with you?

Entrenched is the rule that in the prosecution of rape cases, the essential element A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.
that must be proved is the absence of the victim's consent to the sexual congress. 136
Q Why, what did you do when he started to pull your pantie [sic]?
Under the law, consent is absent when: (a) it was wrestled from the victim by force,
threat or intimidation, fraudulent machinations or grave abuse of authority; or (b) A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.
the victim is incapable of giving free and voluntary consent because he/she is
deprived of reason or otherwise unconscious or that the offended party is under 12 xx xx
years of age or is demented.
Q So, when your pantie [sic] was tom by your husband, what else did he do?
Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from
her through force and intimidation both of which were established beyond moral A He flexed my two legs and rested his two legs on my legs.
certainty by the prosecution through the pertinent testimony of KKK, viz:
Q So after that what else did he do?
On the October 16, 1998 rape incident:
A He succeeded in having sex with me because he held my two hands no matter
(Direct Examination) how I wrestled but I failed because he is stronger than me.

ATTY. LARGO: COURT: Make it of record that the witness is sobbing while she is giving her
testimony.
Q So, while you were already lying on the bed together with your husband, do you
remember what happened? ATTY. LARGO: (To the witness cont'ng.)

A He lie down beside me and asked me to have sex with him. Q So, what did you do when your husband already stretched your two legs and rode
on you and held your two hands?
A I told him, "don't do that because I'm not feeling well and my whole body is A Yes, Sir.
aching."
Q Meaning, your position of your legs was normal during that time?
Q How did you say that to your husband?
A I tried to resist by not flexing my legs.
A I told him, "don't do that to me because I'm not feeling well."
xxxx
Q Did you say that in the manner you are saying now?
Q At that time when your husband allegedly removed your panty he also remove
xxxx your nightgown?

A I shouted when I uttered that words. A No, Sir.

xxxx Q And he did pull out your duster [sic] towards your face?

Q Was your husband able to consummate his desire? A He raised my duster [sic] up.

xxxx Q In other words your face was covered when he raised your duster [sic]?

A Yes, sir, because I cannot do anything.137 A No, only on the breast level.138

(Cross-Examination) On the October 17, 1998 rape incident:

ATTY. AMARGA; (Direct Examination)

Q Every time you have sex with your husband it was your husband normally remove ATTY. LARGO
your panty?
Q So, after your children went out of the room, what transpired?
A Yes, Sir.
A He successfully having sex with me because he pulled my short pant and pantie
Q It was not unusual for your husband then to remove your panty because forcible.
according to you he normally do that if he have sex with you?
Q So, what did you say when he forcibly pulled your short and pantie?
A Yes, Sir.
A I told him, "don't do that to me, my body is still aching and also my abdomen and
Q And finally according to you your husband have sex with you? I cannot do what you wanted me to do. I cannot withstand sex."

A Yes, Sir because he forcibly used me in spite of holding my panty because I don't Q So, what happened to your short when he forcibly pulled it down?
want to have sex with him at that time.
A It was tom.
Q You did not spread your legs at that time when he removed your panty?
Q And after your short and pantie was pulled down by your husband, what did he congress. She held on to her panties to prevent him from undressing her, she
do? refused to bend her legs and she repeatedly shouted and begged for him to stop.

A He also removed his short and brief and flexed my two legs and mounted on me Moreover, as an element of rape, force or intimidation need not be irresistible; it
and succeeded in having sex with me.139 may be just enough to bring about the desired result. What is necessary is that the
force or intimidation be sufficient to consummate the purpose that the accused had
The accused-appellant forced his wife when he knowingly overpowered her by in mind141 or is of such a degree as to impel the defenseless and hapless victim to
gripping her hands, flexing her legs and then resting his own legs thereon in order bow into submission.142
to facilitate the consummation of his much-desired non-consensual sexual
intercourse. Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's
panties or the lack of a medical certificate do not negate rape. It is not the presence
Records also show that the accused-appellant employed sufficient intimidation or absence of blood on the victim's underwear that determines the fact of
upon KKK. His actuations prior to the actual moment of the felonious coitus rape143 inasmuch as a medical certificate is dispensable evidence that is not
revealed that he imposed his distorted sense of moral authority on his wife. He necessary to prove rape.144These details do not pertain to the elements that
furiously demanded for her to lay with him on the bed and thereafter coerced her produce the gravamen of the offense that is -sexual intercourse with a woman
to indulge his sexual craving. against her will or without her consent.145

The fury the accused-appellant exhibited when KKK refused to sleep with him on The accused-appellant harps on the acquittal ruling in People v. Godoy,146 the
their bed, when she insisted to sleep in the children's bedroom and the fact that he evidentiary circumstances of which are, however, disparate from those in the
exercises dominance over her as husband all cowed KKK into submission. present case. In Godoy, the testimony of the complainant was inherently weak,
inconsistent, and was controverted by the prosecution's medico-legal expert
The fact that KKK voluntarily went with the accused-appellant to their conjugal witness who stated that force was not applied based on the position of her hymenal
bedroom on October 16, 1998 cannot be stretched to mean that she consented to laceration. This led the Court to conclude that the absence of any sign of physical
the forced sexual intercourse that ensued. The accused-appellant was KKK's violence on the victim's body is an indication of consent.147 Here, however, KKK's
husband and hence it was customary for her to sleep in the conjugal bedroom. No testimony is, as discussed earlier, credible, spontaneous and forthright.
consent can be deduced from such act of KKK because at that juncture there were
no indications that sexual intercourse was about to take place. The issue of consent The corroborative testimonies of
was still irrelevant since the act for which the same is legally required did not exist MMM and OOO are worthy of credence.
yet or at least unclear to the person from whom the consent was desired. The
significant point when consent must be given is at that time when it is clear to the The accused-appellant's assertion that MMM and OOO's testimonies lacked
victim that her aggressor is soliciting sexual congress. In this case, that point is when probative value as they did not witness the actual rape is bereft of merit. It must be
the accused-appellant tapped his fingers on her lap, a gesture KKK comprehended stressed that rape is essentially committed in relative isolation, thus, it is usually
to be an invitation for a sexual intercourse, which she refused. only the victim who can testify with regard to the fact of the forced sexual
intercourse.148 Hence, the probative value of MMM and OOO's testimonies rest not
Resistance, medical certificate and blood traces. on whether they actually witnessed the rape but on whether their declarations
were in harmony with KKK's narration of the circumstances, preceding, subsequent
We cannot give credence to the accused-appellant's argument that KKK should have to and concurrent with, the rape incidents.
hit him to convey that she was resisting his sexual onslaught. Resistance is not an
element of rape and the law does not impose upon the victim the burden to prove MMM and OOO's testimonies substantiated significant points in KKK's narration.
resistance140 much more requires her to raise a specific kind thereof. MMM heard KKK shouting and crying: "Eddie, don’t do that to me, have pity on
me"149 on the night of October 16, 1998 shortly after KKK and the accused-appellant
At any rate, KKK put up persistent, audible and intelligible resistance for the went to their conjugal bedroom. When MMM went upstairs to check on her
accused-appellant to recognize that she seriously did not assent to a sexual mother, the accused-appellant admonished her for meddling. Frustrated to aid her
mother who persistently cried, MMM kicked the door so hard the accused- she could sue his husband for rape when Prosecutor Benjamin Tabique, Jr.
appellant was prompted to open it and rebuke MMM once more. OOO heard all (Prosecutor Tabique) told her about it when she filed the separate charges for grave
these commotion from the room downstairs. threats and physical injuries against the accused-appellant.151

MMM then saw her mother crouched on the bed, crying, with her hair disheveled It must be noted that the incidents occurred a year into the effectivity of R.A. No.
while her tom panty lay on the floor. After a brief struggle with the accused- 8353 abolishing marital exemption in rape cases hence it is understandable that it
appellant, MMM and KKK were finally able to escape and retreat to the children's was not yet known to a layman as opposed to legal professionals like Prosecutor
bedroom where KKK narrated to her daughters: "[Y]our father is an animal, a beast; Tabique. In addition, fear of reprisal thru social humiliation which is the common
he forced me to have sex with him when I'm not feeling well. " factor that deter rape victims from reporting the crime to the authorities is more
cumbersome in marital rape cases. This is in view of the popular yet outdated belief
KKK gave a similar narration to MMM and OOO the following night after the that it is the wife's absolute obligation to submit to her husband's carnal desires. A
accused-appellant barged inside the children's bedroom. The couple had an husband raping his own wife is often dismissed as a peculiar occurrence or
argument and when MMM tried to interfere, the accused-appellant ordered her trivialized as simple domestic trouble.
and OOO to get out after bragging that he can have sex with his wife even in front
of the children because he is the head of the family. The girls then stayed by the Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the
staircase where they afterwards heard their mother helplessly crying and shouting stigma and public scrutiny that could have befallen KKK and her family had the
for the accused-appellant to stop. intervention of police authorities or even the neighbors been sought, are
acceptable explanations for the failure or delay in reporting the subject rape
Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the incidents.
accused-appellant, through the use of force and intimidation, had non-consensual
and forced carnal knowledge of his wife, KKK on the nights of October 16 and 17, The victim -S testimony on the
1998. witness stand rendered
unnecessary the presentation of her
KKK's helpless screams and pleas from inside the bedroom coupled with her verbal complaint-affidavit as evidence.
and physical resistance were clear manifestations of coercion. Her appearance
when MMM saw her on the bed after the accused appellant opened the door on The failure of the prosecution to present KKK's complaint-affidavit for rape is not
October 16, 1998, her conduct towards the accused-appellant on her way out of the fatal in view of the credible, candid and positive testimony of KKK on the witness
room, and her categorical outcry to her children after the two bedroom episodes - stand. Testimonial evidence carries more weight than the affidavit since it
all generate the conclusion that the sexual acts that occurred were against her will. underwent the rudiments of a direct, cross, re-direct and re-cross examinations.
Affidavits or statements taken ex parte are generally considered incomplete and
Failure to immediately report to the inaccurate. Thus, by nature, they are inferior to testimony given in court. 152
police authorities, if satisfactorily
explained, is not fatal to the Ill motive imputed to the victim
credibility of a witness.
The ill motive, which the accused-appellant imputed to KKK, does not inspire belief
The testimonies of KKK and her daughters cannot be discredited merely because as it is riddled with loopholes generated by incongruent and flimsy evidence. The
they failed to report the rape incidents to the police authorities or that KKK prosecution was able to establish that the ₱3 Million deposit in the spouses' bank
belatedly filed the rape charges. Delay or vacillation by the victims in reporting account was the proceeds of their loan from the Bank of Philippine Islands (BPI).
sexual assaults does not necessarily impair their credibility if such delay is Exhibit J, which is a BPI ML instruction sheet dated October 31, 1996 in the amount
satisfactorily explained.150 of ₱3,149,840.63 is the same amount the accused-appellant claimed to have
entrusted to her wife. Although the accused-appellant denied being aware of such
At that time, KKK and her daughters were not aware that a husband forcing his wife loan, he admitted that approximately ₱3 Million was spent for the construction of
to submit to sexual intercourse is considered rape. In fact, KKK only found out that
their house. These pieces of evidence effectively belie the accused appellant's when the crime transpired, but more importantly, the facility of access between the
allegation that KKK could not account for the money deposited in the bank. 153 two places.155

Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain Even granting in arguendo that the accused-appellant had indeed attended a fiesta
how Bebs could be his wife KKK when the letter-sender greeted Bebs a "happy in Dangcagan, Bukidnon or was hauling com with Equia on the dates of commission
birthday" on October 28 while KKK's birthday is June 23. The accused-appellant also of the crime, the same will not easily exonerate him. The accused-appellant failed
did not present Bebs herself, being a more competent witness to the existence of to adduce clear and convincing evidence that it was physically impossible for him to
the alleged love letters for KKK. He likewise failed, despite promise to do so, to be at his residence in Cagayan de Oro City at the time of the commission of the
present the original copies of such love letters neither did he substantiate KKK's crime. Dangcagan, Bukidnon can be traversed by about four or five hours from
supposed extra-marital affairs by presenting witnesses who could corroborate his Cagayan de Oro City, and even less by private vehicle which was available to the
claims. Further, the Court finds it unbelievable that an able man would not have the accused appellant at any time.156 Thus, it was not physically impossible for him to
temerity to confront his wife who has fooled around with 10 men - some of whom be at the situs criminis at the dates and times when the two rape incidents were
he has even met. The accused-appellant's erratic statements on the witness stand committed.
are inconsistent with the theory of extra-marital romance making it reasonable to
infer that he merely made up those malicious stories as a desperate ploy to Between the accused-appellant's alibi and denial, and the positive identification and
extricate himself out of this legal quandary. credible testimony of the victim, and her two daughters, the Court must give weight
to the latter, especially in the absence of ill motive on their part to falsely testify
At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's against the accused-appellant.
unfounded suspicions that hold no evidentiary weight in law and thus incompetent
to destroy KKK's credibility and that of her testimony. In sum, the defense failed to Conclusion
present sufficiently convincing evidence that KKK is a mere vindictive wife who is
harassing the accused-appellant with fabricated rape charges. All told, the presumption of innocence endowed an accused-appellant was
sufficiently overcome by KKK's clear, straightforward, credible, and truthful
Alibi declaration that on two separate occasions, he succeeded in having sexual
intercourse with her, without her consent and against her will. Evidence of
It must be stressed that in raising the irrevocable implied consent theory as overwhelming force and intimidation to consummate rape is extant from KKK's
defense, the accused-appellant has essentially admitted the facts of sexual narration as believably corroborated by the testimonies of MMM and OOO and the
intercourse embodied in the two criminal informations for rape. This admission is physical evidence of KKK's tom panties and short pants. Based thereon, the reason
inconsistent with the defense of alibi and any discussion thereon will thus be and conscience of the Court is morally certain that the accused-appellant is guilty of
irrelevant. raping his wife on the nights of October 16 and 17, 1998.

At any rate, the courts a quo correctly rejected his alibi. Penalties

Alibi is one of the weakest defenses not only because it is inherently frail and The Court affirms the penalty of reclusion perpetua, for each count of rape, meted
unreliable, but also because it is easy to fabricate and difficult to check or rebut. It upon the accused-appellant for being in accord with Article 266-A in relation to 266-
cannot prevail over the positive identification of the accused by eyewitnesses who B of the RPC. Further, he shall not be eligible for parole pursuant to Section 3 of R.A.
had no improper motive to testify falsely. 154 No. 9346, which states that "persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of
For the defense of alibi to prosper, the accused must prove not only that he was at this Act, shall not be eligible for parole under Act No. 4180, otherwise known as the
some other place at the time of the commission of the crime, but also that it was Indeterminate Sentence Law, as amended."157
physically impossible for him to be at the locus delicti or within its immediate
vicinity. Physical impossibility refers not only to the geographical distance between The Court sustains the moral damages awarded in the amount of ₱50,000.00. Moral
the place where the accused was and the place where the crime was committed damages are granted to rape victims without need of proof other than the fact of
rape under the assumption that the victim suffered moral injuries from the who institutes untrue and malicious charges will be made answerable under the
experience she underwent.158 pertinent provisions of the RPC and/or other laws.

The award of civil indemnity is proper; it is mandatory upon the finding that rape WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the
took place.1âwphi1 Considering that the crime committed is simple rape, there Court of Appeals in CA-G.R. CR-HC No. 00353 is hereby AFFIRMED with
being no qualifying circumstances attendant in its commission, the appropriate MODIFICATIONS. Accused-appellant Edgar Jumawan is found GUILTY beyond
amount is ₱50,000.00159 and not ₱75,000.00 as awarded by the RTC. reasonable doubt of two (2) counts of RAPE and is sentenced to suffer the penalty
of reclusion perpetua for each count, without eligibility for parole. He is further
To serve as an example for public good and in order to deter a similar form of ordered to pay the victim, KKK, the amounts of PS0,000.00 as civil indemnity,
domestic violence, an award of ₱30,000.00 as exemplary damages is imperative.160 ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages, for each
count of rape. The award of damages shall earn legal interest at the rate of six
The damages awarded shall earn legal interest at the rate of six percent (6%) per percent (6%) per annum from the finality of this judgment until fully paid.
annum to be reckoned from the date of finality of this judgment until fully paid.161
SO ORDERED.
A Final Note

Rape is a crime that evokes global condemnation because it is an abhorrence to a


woman's value and dignity as a human being. It respects no time, place, age,
physical condition or social status. It can happen anywhere and it can happen to
anyone. Even, as shown in the present case, to a wife, inside her time-honored
fortress, the family home, committed against her by her husband who vowed to be
her refuge from cruelty. The herein pronouncement is an affirmation to wives that
our rape laws provide the atonement they seek from their sexually coercive
husbands.

Husbands are once again reminded that marriage is not a license to forcibly rape
their wives. A husband does not own his wife's body by reason of marriage. By
marrying, she does not divest herself of the human right to an exclusive autonomy
over her own body and thus, she can lawfully opt to give or withhold her consent to
marital coitus. A husband aggrieved by his wife's unremitting refusal to engage in
sexual intercourse cannot resort to felonious force or coercion to make her yield.
He can seek succor before the Family Courts that can determine whether her
refusal constitutes psychological incapacity justifying an annulment of the marriage.

Sexual intimacy is an integral part of marriage because it is the spiritual and


biological communion that achieves the marital purpose of procreation. It entails
mutual love and self-giving and as such it contemplates only mutual sexual
cooperation and never sexual coercion or imposition.

The Court is aware that despite the noble intentions of the herein pronouncement,
menacing personalities may use this as a tool to harass innocent husbands. In this
regard, let it be stressed that safeguards in the criminal justice system are in place
to spot and scrutinize fabricated or false marital rape complaints and any person
G.R. No. 11263 November 2, 1916 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
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, purity the public is deeply interested. It is a relation for life and the parties cannot
vs. terminate it at any shorter period by virtue of any contract they may make .The
JOSE CAMPOS RUEDA, defendant-appellee. 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
TRENT, J.: 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
This is an action by the wife against her husband for support outside of the conjugal
rendering its continuance intolerable to one of the parties and productive of no
domicile. From a judgment sustaining the defendant's demurrer upon the ground
possible good to the community, relief in some way should be obtainable. With
that the facts alleged in the complaint do not state a cause of action, followed by an
these principles to guide us, we will inquire into the status of the law touching and
order dismissing the case after the plaintiff declined to amend, the latter appealed.
governing the question under consideration.
It was urged in the first instance, and the court so held, that the defendant cannot
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands
be compelled to support the plaintiff, except in his own house, unless it be by virtue
(Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil
of a judicial decree granting her a divorce or separation from the defendant.
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,
The parties were legally married in the city of Manila on January 7, 1915, and
45, and 48 of this law read:
immediately thereafter established their residence at 115 Calle San Marcelino,
where they lived together for about a month, when the plaintiff returned to the
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist
home of her parents. The pertinent allegations of the complaint are as follows:
each other.
That the defendant, one month after he had contracted marriage with the plaintiff,
ART. 45. The husband must live with and protect his wife. (The second paragraph
demanded of her that she perform unchaste and lascivious acts on his genital
deals with the management of the wife's property.)
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 ART. 48. The wife must obey her husband, live with him, and follow him when he
lewd and indecorous demands on his wife, the plaintiff, who always spurned them, charges his domicile or residence.
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 Notwithstanding the provisions of the foregoing paragraph, the court may for just
different parts of her body; and that, as the plaintiff was unable by any means to cause relieve her from this duty when the husband removes his residence to a
induce the defendant to desist from his repugnant desires and cease from foreign country.
maltreating her, she was obliged to leave the conjugal abode and take refuge in the
home of her parents. And articles 143 and 149 of the Civil Code are as follows:

Marriage in this jurisdiction is a contract entered into in the manner and with the ART. 143. The following are obliged to support each other reciprocally to
solemnities established by General Orders No. 68, in so far as its civil effects are the whole extent specified in the preceding article.
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 1. The consorts.
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
ART. (149) 49. The person obliged to give support may, at his option, satisfy it, The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil.
either by paying the pension that may be fixed or by receiving and maintaining in Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil
his own home the person having the right to the same. 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
Article 152 of the Civil Code gives the instances when the obligation to give support one entitled to support. It is true that in the first the person claiming the option was
shall cease. The failure of the wife to live with her husband is not one of them. 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
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the final judgment in a criminal case. Notwithstanding these facts the two cases clearly
duties and obligations of the spouses. The spouses must be faithful to, assist, and established the proposition that the option given by article 149 of the Civil Code
support each other. The husband must live with and protect his wife. The wife must may not be exercised in any and all cases.
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 Counsel for the defendant cite, in support of their contention, the decision of the
obliged to support his wife may, at his option, do so by paying her a fixed pension or supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as
by receiving and maintaining her in his own home. May the husband, on account of a result of certain business reverses and in order no to prejudice his wife, conferred
his conduct toward his wife, lose this option and be compelled to pay the pension? upon her powers to administer and dispose of her property. When she left him he
Is the rule established by article 149 of the Civil Code absolute? The supreme court gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts
of Spain in its decision of December 5, 1903, held:. 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.
That in accordance with the ruling of the supreme court of Spain in its decisions Subsequently he instituted this civil action against his wife, who was then living in
dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article opulence, for support and the revocation of the powers heretofore granted in
149 grants the person, obliged to furnish subsistence, between paying the pension reference to the administration and disposal of her property. In her answer the wife
fixed or receiving and keeping in his own house the party who is entitled to the claimed that the plaintiff (her husband) was not legally in a situation to claim
same, is not so absolute as to prevent cases being considered wherein, either support and that the powers voluntarily conferred and accepted by her were
because this right would be opposed to the exercise of a preferential right or bilateral and could not be canceled by the plaintiff. From a judgment in favor of the
because of the existence of some justifiable cause morally opposed to the removal plaintiff the defendant wife appealed to the Audencia Territorial wherein, after due
of the party enjoying the maintenance, the right of selection must be understood as trial, judgment was rendered in her favor dismissing the action upon the merits. The
being thereby restricted. plaintiff appealed to the supreme court and that high tribunal, in affirming the
judgment of the Audencia Territorial, said:
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 Considering that article 143, No. 1, of the Civil Code, providing that the
article 149 of the Civil Code to the person obliged to furnish subsistence, to receive spouses are mutually obliged to provide each other with support, cannot
and maintain in his own house the one who is entitled to receive it; and inasmuch but be subordinate to the other provisions of said Code which regulates
as nothing has been alleged or discussed with regard to the parental authority of the family organization and the duties of spouses not legally separated,
Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that among which duties are those of their living together and mutually helping
the natural father simply claims his child for the purpose of thus better attending to each other, as provided in article 56 of the aforementioned code; and
her maintenance, no action having been taken by him toward providing the support taking this for granted, the obligation of the spouse who has property to
until, owing to such negligence, the mother was obliged to demand it; it is seen that furnish support to the one who has no property and is in need of it for
these circumstances, together with the fact of the marriage of Pedro Alcantara, and subsistence, is to be understood as limited to the case where, in
that it would be difficult for the mother to maintain relations with her daughter, all accordance with law, their separation has been decreed, either
constitute an impediment of such a nature as to prevent the exercise of the option temporarily or finally and this case, with respect to the husband, cannot
in the present case, without prejudice to such decision as may be deemed proper occur until a judgment of divorce is rendered, since, until then, if he is
with regard to the other questions previously cited in respect to which no opinion culpable, he is not deprived of the management of his wife's property and
should be expressed at this time.
of the product of the other property belonging to the conjugal partnership; any action to keep her in his company and he therefore finds himself, as
and 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
Considering that, should the doctrine maintained in the appeal prevail, it would the Code in relation with paragraph 1 of article 143. In not so holding, the
allow married persons to disregard the marriage bond and separate from each trial court, on the mistaken ground that for the fulfillment of this duty the
other of their own free will, thus establishing, contrary to the legal provision situation or relation of the spouses should be regulated in the manner it
contained in said article 56 of the Civil Code, a legal status entirely incompatible indicates, has made the errors of law assigned in the first three grounds
with the nature and effects of marriage in disregard of the duties inherent therein alleged, because the nature of the duty of affording mutual support is
and disturbing the unity of the family, in opposition to what the law, in conformity compatible and enforcible in all situations, so long as the needy spouse
with good morals, has established; and. does not create any illicit situation of the court above
described.lawphil.net
Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not
legally separated, it is their duty to live together and afford each other help and If we are in error as to the doctrine enunciated by the supreme court of Spain in its
support; and for this reason, it cannot be held that the former has need of support decision of November 3, 1905, and if the court did hold, as contended by counsel
from his wife so that he may live apart from her without the conjugal abode where for the defendant in the case under consideration, that neither spouse can be
it is his place to be, nor of her conferring power upon him to dispose even of the compelled to support the other outside of the conjugal abode, unless it be by virtue
fruits of her property in order therewith to pay the matrimonial expenses and, of a final judgment granting the injured one a divorce or separation from the other,
consequently, those of his own support without need of going to his wife; still such doctrine or holding would not necessarily control in this jurisdiction for the
wherefore the judgment appealed from, denying the petition of D. Ramon Benso reason that the substantive law is not in every particular the same here as it is in
for support, has not violated the articles of the Civil Code and the doctrine invoked Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the
in the assignments of error 1 and 5 of the appeal. 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
From a careful reading of the case just cited and quoted from it appears quite Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
clearly that the spouses separated voluntarily in accordance with an agreement Civil Code, various causes for divorce, such as adultery on the part of the wife in
previously made. At least there are strong indications to this effect, for the court every case and on the part of the husband when public scandal or disgrace of the
says, "should the doctrine maintained in the appeal prevail, it would allow married wife results therefrom; personal violence actually inflicted or grave insults: violence
persons to disregard the marriage bond and separate from each other of their own exercised by the husband toward the wife in order to force her to change her
free will." If this be the true basis upon which the supreme court of Spain rested its religion; the proposal of the husband to prostitute his wife; the attempts of the
decision, then the doctrine therein enunciated would not be controlling in cases husband or wife to corrupt their sons or to prostitute their daughters; the
where one of the spouses was compelled to leave the conjugal abode by the other connivance in their corruption or prostitution; and the condemnation of a spouse to
or where the husband voluntarily abandons such abode and the wife seeks to force perpetual chains or hard labor, while in this jurisdiction the only ground for a
him to furnish support. That this is true appears from the decision of the same high divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and
tribunal, dated October 16, 1903. In this case the wife brought an action for support absolute doctrine was announced by this court in the case just cited after an
against her husband who had willfully and voluntarily abandoned the conjugal exhaustive examination of the entire subject. Although the case was appealed to
abode without any cause whatever. The supreme court, reversing the judgment the Supreme Court of the United States and the judgment rendered by this court
absolving the defendant upon the ground that no action for divorce, etc., had been was there reversed, the reversal did not affect in any way or weaken the doctrine in
instituted, said: 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
In the case at bar, it has been proven that it was Don Teodoro Exposito
accepted doctrine in this jurisdiction.
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 But it is argued that to grant support in an independent suit is equivalent to
it is the wife who is party abandoned, the husband not having prosecuted 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-4089 January 12, 1909 to the said judgment and in addition moved for a new trial on the ground that the
judgment was contrary to law; the motion was overruled and the plaintiff excepted
ARTURO PELAYO, plaintiff-appellant, and in due course presented the corresponding bill of exceptions. The motion of the
vs. defendants requesting that the declaration contained in the judgment that the
MARCELO LAURON, ET AL., defendants-appellees. defendants had demanded therefrom, for the reason that, according to the
evidence, no such request had been made, was also denied, and to the decision the
TORRES, J.: defendants excepted.

On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by
complaint against Marcelo Lauron and Juana Abella setting forth that on or about virtue of having been sent for by the former, attended a physician and rendered
the 13th of October of said year, at night, the plaintiff was called to the house of the professional services to a daughter-in-law of the said defendants during a difficult
defendants, situated in San Nicolas, and that upon arrival he was requested by and laborious childbirth, in order to decide the claim of the said physician regarding
them to render medical assistance to their daughter-in-law who was about to give the recovery of his fees, it becomes necessary to decide who is bound to pay the
birth to a child; that therefore, and after consultation with the attending physician, bill, whether the father and mother-in-law of the patient, or the husband of the
Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the latter.
fetus by means of forceps which operation was performed by the plaintiff, who also
had to remove the afterbirth, in which services he was occupied until the following According to article 1089 of the Civil Code, obligations are created by law, by
morning, and that afterwards, on the same day, he visited the patient several times; contracts, by quasi-contracts, and by illicit acts and omissions or by those in which
that the just and equitable value of the services rendered by him was P500, which any kind of fault or negligence occurs.
the defendants refuse to pay without alleging any good reason therefor; that for
said reason he prayed that the judgment be entered in his favor as against the Obligations arising from law are not presumed. Those expressly determined in the
defendants, or any of them, for the sum of P500 and costs, together with any other code or in special laws, etc., are the only demandable ones. Obligations arising from
relief that might be deemed proper. contracts have legal force between the contracting parties and must be fulfilled in
accordance with their stipulations. (Arts. 1090 and 1091.)
In answer to the complaint counsel for the defendants denied all of the allegation
therein contained and alleged as a special defense, that their daughter-in-law had The rendering of medical assistance in case of illness is comprised among the
died in consequence of the said childbirth, and that when she was alive she lived mutual obligations to which the spouses are bound by way of mutual support. (Arts.
with her husband independently and in a separate house without any relation 142 and 143.)
whatever with them, and that, if on the day when she gave birth she was in the
house of the defendants, her stay their was accidental and due to fortuitous If every obligation consists in giving, doing or not doing something (art. 1088), and
circumstances; therefore, he prayed that the defendants be absolved of the spouses are mutually bound to support each other, there can be no question but
complaint with costs against the plaintiff. that, when either of them by reason of illness should be in need of medical
assistance, the other is under the unavoidable obligation to furnish the necessary
The plaintiff demurred to the above answer, and the court below sustained the services of a physician in order that health may be restored, and he or she may be
demurrer, directing the defendants, on the 23rd of January, 1907, to amend their freed from the sickness by which life is jeopardized; the party bound to furnish such
answer. In compliance with this order the defendants presented, on the same date, support is therefore liable for all expenses, including the fees of the medical expert
their amended answer, denying each and every one of the allegations contained in for his professional services. This liability originates from the above-cited mutual
the complaint, and requesting that the same be dismissed with costs. obligation which the law has expressly established between the married couple.

As a result of the evidence adduced by both parties, judgment was entered by the In the face of the above legal precepts it is unquestionable that the person bound to
court below on the 5th of April, 1907, whereby the defendants were absolved from pay the fees due to the plaintiff for the professional services that he rendered to
the former complaint, on account of the lack of sufficient evidence to establish a the daughter-in-law of the defendants during her childbirth, is the husband of the
right of action against the defendants, with costs against the plaintiff, who excepted patient and not her father and mother- in-law, the defendants herein. The fact that
it was not the husband who called the plaintiff and requested his assistance for his
wife is no bar to the fulfillment of the said obligation, as the defendants, in view of
the imminent danger, to which the life of the patient was at that moment exposed,
considered that medical assistance was urgently needed, and the obligation of the
husband to furnish his wife in the indispensable services of a physician at such
critical moments is specially established by the law, as has been seen, and
compliance therewith is unavoidable; therefore, the plaintiff, who believes that he
is entitled to recover his fees, must direct his action against the husband who is
under obligation to furnish medical assistance to his lawful wife in such an
emergency.

From the foregoing it may readily be understood that it was improper to have
brought an action against the defendants simply because they were the parties who
called the plaintiff and requested him to assist the patient during her difficult
confinement, and also, possibly, because they were her father and mother-in-law
and the sickness occurred in their house. The defendants were not, nor are they
now, under any obligation by virtue of any legal provision, to pay the fees claimed,
nor in consequence of any contract entered into between them and the plaintiff
from which such obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme
court of Spain, while recognizing the validity and efficiency of a contract to furnish
support wherein a person bound himself to support another who was not his
relative, established the rule that the law does impose the obligation to pay for the
support of a stranger, but as the liability arose out of a contract, the stipulations of
the agreement must be held. (Decision of May 11, 1897.)

Within the meaning of the law, the father and mother-in-law are strangers with
respect to the obligation that devolves upon the husband to provide support,
among which is the furnishing of medical assistance to his wife at the time of her
confinement; and, on the other hand, it does not appear that a contract existed
between the defendants and the plaintiff physician, for which reason it is obvious
that the former can not be compelled to pay fees which they are under no liability
to pay because it does not appear that they consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to
the judgment below are unfounded, because, if the plaintiff has no right of action
against the defendants, it is needless to declare whether or not the use of forceps is
a surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it is our opinion that
the judgment appealed from should be affirmed with the costs against the
appellant. So ordered.