G.R. No. L-34132 July 29, 1972 attempt by him against her life being alleged.
attempt by him against her life being alleged. She likewise sought the
LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of
First Instance of Negros Oriental and CLEMEN G. RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is whether or not Article
103 of the Civil Code prohibiting the hearing of an action for legal
separation before the lapse of six months from the filing of the petition,
would likewise preclude the court from acting on a motion for preliminary
mandatory injunction applied for as an ancillary remedy to such a suit.
Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros
Oriental, answered the question in the affirmative, in view of the absolute
tenor of such Civil Code provision, which reads thus: "An action for legal
separation shall in no case be tried before six months shall have elapsed
since the filing of the petition." He therefore ordered the suspension, upon
the plea of the other respondent the husband Clemente G. Ramos, of the
hearing on a motion for a writ of preliminary mandatory injunction filed by
petitioner at the same time the suit for legal separation was instituted.
Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal
separation would dispute such a ruling. Hence, this certiorari proceeding. As
will be shown later there is justification for such a move on the part of
petitioner. The respondent Judge ought to have acted differently. The plea
for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case No.
5274 in the sala of respondent Judge against respondent Clemente Ramos
for legal separation, on concubinage on the respondent's part and an
issuance of a writ of preliminary mandatory injunction for the return to her
of what she claimed to be her paraphernal and exclusive property, then
under the administration and management of respondent Clemente Ramos.
There was an opposition to the hearing of such a motion, dated July 3,
1971, based on Article 103 of the Civil Code. It was further manifested by
him in a pleading dated July 16, 1971, that if the motion asking for
preliminary mandatory injunction were heard, the prospect of the
reconciliation of the spouses would become even more dim. Respondent
Judge ordered the parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner received an order dated
August 4, 1971 of respondent Judge granting the motion of respondent
Ramos to suspend the hearing of the petition for a writ of mandatory
preliminary injunction. That is the order complained of in this petition
for certiorari. Respondents were required to answer according to our
resolution of October 5, 1971. The answer was filed December 2 of that
year. Then on January 12, 1972 came a manifestation from parties in the
case submitting the matter without further arguments.
After a careful consideration of the legal question presented, it is the
holding of this Court that Article 103 the Civil Code is not an absolute bar to
the hearing motion for preliminary injunction prior to the expiration of the
six-month period.
1. It is understandable why there should be a period during which the court
is precluded from acting. Ordinarily of course, no such delay is permissible.
Justice to parties would not thereby be served. The sooner the dispute is
resolved, the better for all concerned. A suit for legal separation, however,
is something else again. It involves a relationship on which the law for the
best reasons would attach the quality of permanence. That there are times
when domestic felicity is much less than it ought to be is not of course to be
denied. Grievances, whether fancied or real, may be entertained by one or
both of the spouses. There may be constant bickering. The loss affection on
the part of one or both may be discernible. Nonetheless, it will not serve
public interest, much less the welfare of the husband or the wife, to allow
them to go their respective ways. Where there are offspring, the reason for
maintaining the conjugal union is even more imperative. It is a mark of
realism of the law that for certain cases, adultery on the part of the wife
and concubinage on the part of the husband, or an attempt of one spouse
against the life of the other,1 it recognizes, albeit reluctantly, that the
couple is better off apart. A suit for legal separation lies. Even then, the
hope that the parties may settle their differences is not all together
abandoned. The healing balm of time may aid in the process. Hopefully, the
guilty parties may mend his or her ways, and the offended party may in turn
exhibit magnanimity. Hence, the interposition of a six-month period before
an action for legal separation is to be tried.
The court where the action is pending according to Article 103 is to remain
passive. It must let the parties alone in the meanwhile. It is precluded from
hearing the suit. There is then some plausibility for the view of the lower
court that an ancillary motion such as one for preliminary mandatory
injunction is not to be acted on. If it were otherwise, there would be a
failure to abide by the literal language of such codal provision. That the law,
however, remains cognizant of the need in certain cases for judicial power
to assert itself is discernible from what is set forth in the following article. It
reads thus: "After the filing of the petition for legal separation, the spouse
shall be entitled to live separately from each other and manage their
respective property. The husband shall continue to manage the conjugal
partnership property but if the court deems it proper, it may appoint
another to manage said property, in which case the administrator shall have
the same rights and duties as a guardian and shall not be allowed to dispose
of the income or of the capital except in accordance with the orders of the
court."2 There would appear to be then a recognition that the question of
management of their respective property need not be left unresolved even
during such six-month period. An administrator may even be appointed for
the management of the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be heard. There is
justification then for the petitioner's insistence that her motion for
preliminary mandatory injunction should not be ignored by the lower court.
There is all the more reason for this response from respondent Judge,
considering that the husband whom she accused of concubinage and an
attempt against her life would in the meanwhile continue in the
management of what she claimed to be her paraphernal property, an
assertion that was not specifically denied by him. What was held by this
Court in Araneta v. Concepcion,3 thus possesses relevance: "It is conceded
that the period of six months fixed therein Article 103 (Civil Code) is
evidently intended as a cooling off period to make possible a reconciliation
between the spouses. The recital of their grievances against each other in
court may only fan their already inflamed passions against one another, and
the lawmaker has imposed the period to give them opportunity for
dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions
such as the determination of the custody of the children and alimony and
support pendente lite according to the circumstance ... The law expressly
enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual
facts, rank injustice may be caused."4 At any rate, from the time of the
issuance of the order complained of on August 4, 1971, more than six
months certainly had elapsed. Thus there can be no more impediment for
the lower court acting on the motion of petitioner for the issuance of a writ
of preliminary mandatory injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and
the order of respondent Court of August 4, 1971, suspending the hearing
on the petition for a writ of preliminary mandatory injunction is set aside.
Respondent Judge is directed to proceed without delay to hear the motion
for preliminary mandatory injunction. Costs against respondent Clemente
G. Ramos.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Makasiar, Antonio and Esguerra, JJ., concur.
Separate Opinions
Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13,
24.

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13,
24.
 G.R. No. L-29138 May 29, 1970chanrobles virtual law library
ELENA CONTRERAS, Plaintiff-Appellant, v. CESAR J. MACARAIG, Defendant-
Appellee.
Jose T. Nery for plaintiff-appellee.chanroblesvirtualawlibrarychanrobles
virtual law library
The City fiscal for defendant-appellant.chanroblesvirtualawlibrarychanrobles
virtual law library
Cesar J. Macaraig in his own behalf.
DIZON, J.:
Appeal taken by Elena Contreras from a decision of the Juvenile and
Domestic Relations Court of Manila in Civil Case No. 00138 dismissing her
complaint upon the ground that the same was filed more than one year
from and after the date on which she had become cognizant of the cause
for legal separation.chanroblesvirtualawlibrarychanrobles virtual law library
The following, facts found by the trial court are not in dispute:
Plaintiff and defendant were married on March 16, 1952 in the Catholic
Church of Quiapo, Manila. Out of their Marriage, three children were born:
Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig, on March
26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are
in the care of plaintiff wife.chanroblesvirtualawlibrarychanrobles virtual law
library
Sometime in 1958, the couple acquired rights, as lessee and purchaser
under a conditional sale agreement, to own a house and lot, known as Lot
4, Block 8 of the Philamlife Homes in Quezon City which they transferred in
favor of their three children on October 29, 1958 (Exh. F). Installment
payments are being made by plaintiff's father. The spouses own no other
conjugal property.chanroblesvirtualawlibrarychanrobles virtual law library
Immediately before the election of 1961, defendant was employed as
manager of the printing establishment owned by plaintiff's father known as
the MICO Offset. In that capacity, defendant met and came to know Lily
Ann Alcala, who place orders with MICO Offset for propaganda materials for
Mr. Sergio Osmeña, who was then a Vice-Presidential candidate. After the
elections of 1961, defendant resigned from MICO Offset to be a special
agent at Malacañang. He began to be away so often and to come home
very late. Upon plaintiff's inquiry, defendant explained that he was out on a
series of confidential missions.chanroblesvirtualawlibrarychanrobles virtual
law library
In September, 1962, Avelino Lubos, driver of the family car, told plaintiff
that defendant was living in Singalong with Lily Ann Alcala. When
defendant, the following October, returned to the conjugal home, plaintiff
refrained from verifying Lubos' report from defendant in her desire not to
anger nor drive defendant away. Although plaintiff, in April 1963, also
received rumors that defendant was seen with a woman who was on the
family way on Dasmariñas St., she was so happy that defendant again return
to the family home in May, 1963 that she once more desisted from
discussing the matter with him because she did not wish to precipitate a
quarrel and drive him away. All this while, defendant, if and whenever he
returned to the family fold, would only stay for two or three days but would
be gone for a period of about a
month.chanroblesvirtualawlibrarychanrobles virtual law library
After plaintiff received reports that Lily Ann Alcala had given birth to a baby,
she sent Mrs. Felicisima Antioquia, her father's employee, to verify the
reports. The latter was driven by Lubos to the house in Singalong and
between 5:00 and 6:00 o'clock that afternoon, she saw defendant was
carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of
Singalong where she inquired about the child of Cesar Macaraig and Lily
Ann Alcala and she was given a copy of the baptismal certificate of Maria
Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in
October, 1963.chanroblesvirtualawlibrarychanrobles virtual law library
Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with
defendant and to convince him to return to his family. Mr. Macaraig, after
talking to his son and seeking him with the latter's child told plaintiff that he
could not do anything.chanroblesvirtualawlibrarychanrobles virtual law
library
In November, 1963, plaintiff requested the cooperation of defendant's
older sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a
meeting at her home in Buendia between plaintiff and Lily Ann Alcala. Lily
Ann said she was willing to give up defendant as she had no desire to be
accused criminally but it was defendant who refused to break relationship
with her.chanroblesvirtualawlibrarychanrobles virtual law library
In the early part of December, 1963, plaintiff, accompanied by her two
children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk
to defendant at his place of work on España Extension in front of Quezon
Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to
the conjugal home, assuring him that she was willing to forgive him.
Defendant informed plaintiff that he could no longer leave Lily Ann and
refused to return to his legitimate
family.chanroblesvirtualawlibrarychanrobles virtual law library
On December 14, 1963, plaintiff instituted the present action for legal
separation. When defendant did not interpose any answer after he was
served summons, the case was referred to the Office of the City Fiscal of
Manila pursuant to the provisions of Article 101 of the Civil Code. After a
report was received from Asst. Fiscal Primitivo M. Peñaranda that he
believed that there was no collusion present, plaintiff was allowed to
present her evidence. Defendant has never appeared in this case.
The reasons relied upon by the trial court in dismissing the complaint are
set forth in the appealed decision as follows:
Under the facts established by plaintiff's evidence, although the infidelity of
the husband is apparent, yet the case will have to be dismissed. Article 102
provides that, an action for legal separation cannot be instituted except
within one year after plaintiff "became cognizant of the cause." In the
absence of a clear-cut decision of the Supreme Court as to the exact import
of the term "cognizant," the practical application of said Article can be
attended with difficulty. For one thing; that rules might be different in case
of adultery, which is an act, and for concubinage, which may be a situation
or a relationship.chanroblesvirtualawlibrarychanrobles virtual law library
In respect of concubinage, the word 'cognizant' may not connote the date
when proof thereof sufficient to establish the cause before a court of law is
possessed. Otherwise, the one year period would be meaningless for
practical purposes because all a wife would have to do would be to claim
that the necessary proof was secured only within one year before the filing
of the complaint. On the other hand, it should be hard to concede that
what the law envisages (and, in a way, encourages) is the filing of a
complaint within one year after the innocent spouses has received
information of the other's infidelity, howsoever baseless the report might
be.chanroblesvirtualawlibrarychanrobles virtual law library
The Court believes that the correct rule lies between the two extremes. At
the time a wife acquired information, which can be reasonably relied upon
as true, that her husband is living in concubinage with another woman, the
one-year period should be deemed to have started even if the wife shall not
then be in possession of proof sufficient to establish the concubinage
before a court of law. The one-year period may be viewed, inter alia, as an
alloted time within which proof should be secured. It is in the light of this
rule that the Court will determine whether or not plaintiff's action for legal
separation has prescribed.chanroblesvirtualawlibrarychanrobles virtual law
library
After her husband resigned from MICO Offset to be a special agent in
Malacañan, subsequent to the elections of 1961, he would seldom come
home. He allayed plaintiff's suspicions with the explanation that he had
been away on 'confidential missions.' However, in September, 1962, Avelino
Lubos, plaintiff's driver, reported to plaintiff that defendant was living in
Singalong with Lily Ann Alcala. As a matter of fact, it was also Lubos who
brought Mrs. F. Antioquia (when plaintiff had asked to verify the reports) to
the house in Singalong where she saw defendant, Lily Ann and the
baby.chanroblesvirtualawlibrarychanrobles virtual law library
The requirement of the law that a complaint for legal separation be filed
within one year after the date plaintiff become cognizant of the cause is not
of prescriptive nature, but is of the essence of the cause of action. It is
consonant with the philosophy that marriage is an inviolable social
institution so that the law provides strict requirements before it will allow a
disruption of its status.chanroblesvirtualawlibrarychanrobles virtual law
library
In the instant action, the Court has to find that plaintiff became cognizant of
defendant's infidelity in September, 1962. Plaintiff made successive
attempts to induce the husband to amend his erring ways but failed. Her
desire to bring defendant back to the connubial fold and to preserve family
solidarity deterred her from taking timely legal action.
The only question to be resolved is whether the period of one year provided
for in Article 102 of the Civil Code should be counted, as far as the instant
case is concerned from September 1962 or from December 1963.
Computing the period of one year from the former date, it is clear that
plaintiff's complaint filed on December 14, 1963 came a little too late, while
the reverse would be true if said period is deemed to have commenced only
in the month of December 1963.chanroblesvirtualawlibrarychanrobles
virtual law library
The period of "five years from after the date when such cause occurred" is
not here involved.chanroblesvirtualawlibrarychanrobles virtual law library
Upon the undisputed facts it seems clear that, in the month of September
1962, whatever knowledge appellant had acquired regarding the infidelity
of her husband, that is, of the fact that he was then living in Singalong with
Lily Ann Alcala, was only through the information given to her by Avelino
Lubos, driver of the family car. Much as such hearsay information had
pained and anguished her, she apparently thought it best - and no
reasonable person may justifiably blame her for it - not to go deeper into
the matter herself because in all probability even up to that time,
notwithstanding her husband's obvious neglect of his entire family,
appellant still cherished the hope - however forlorn - of his coming back
home to them. Indeed, when her husband returned to the conjugal home
the following October, she purposely refrained from bringing up the matter
of his marital infidelity "in her desire not to anger nor drive defendant
away" - quoting the very words of the trial court. True, appellant likewise
heard in April 1963 rumors that her husband was seen with a woman on the
family way on Dasmariñas Street, but failed again to either bring up the
matter with her husband or make attempts to verify the truth of said
rumors, but this was due, as the lower court itself believed, because "she
was so happy that defendant again returned to the family home in May
1963 that she once more desisted from discussing the matter with him
because she did not wish to precipitate a quarrel and drive him away." As a
matter of fact, notwithstanding all these painful informations which would
not have been legally sufficient to make a case for legal separation -
appellant still made brave if desperate attempts to persuade her husband
to come back home. In the words of the lower court, she "entreated her
father-in-law, Lucilo Macaraig, to intercede with defendant and to convince
him to return to his family" and also "requested the cooperation of
defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but
all that was of no avail. Her husband remained
obdurate.chanroblesvirtualawlibrarychanrobles virtual law library
After a careful review of the record, We are persuaded that, in the eyes of
the law, the only time when appellant really became cognizant of the
infidelity of her husband was in the early part of December 1963 when,
quoting from the appealed decision, the following happened -
In the early part of December, 1963, plaintiff, accompanied by her two
children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk
to defendant at his place of work on España Extension in front of Quezon
Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to
the conjugal home, assuring him that she was willing to forgive him.
Defendant informed plaintiff that he could no longer leave Lily Ann and
refused to return to his legitimate
family.chanroblesvirtualawlibrarychanrobles virtual law library
From all the foregoing We conclude that it was only on the occasion
mentioned in the preceding paragraph when her husband admitted to her
that he was living with and would no longer leave Lily Ann to return to his
legitimate family that appellant must be deemed to be under obligation to
decide whether to sue or not to sue for legal separation, and it was only
then that the legal period of one year must be deemed to have
commenced.

WHEREFORE, the decision appealed from is set aside and another is hereby
rendered holding that appellant is entitled to legal separation as prayed for
in her complaint; and the case is hereby remanded to the lower court for
appropriate proceedings in accordance with law.

Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo and

Villamor, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library

Concepcion, C.J., concurs in the result.chanroblesvirtualawlibrarychanrobles

virtual law library

Castro, J., is on leave.