No. L-27930. November 26, 1970.

AURORA A. ANAYA, plaintiff-appellant, vs.FERNANDO O.

PALAROAN, defendant-appellee.
Civil Law; Marriages; Void and Voidable Marriages; Fraud as
a ground for annulment of marriage.For fraud as a vice of
consent in marriage, which may be a cause for its annulment,
comes under Article 85, No. 4, of the Civil Code. This fraud, as a
vice of consent, is limited exclusively by law to those kinds or
species of fraud enumerated in Article 86.
Same; Same; Same; Same;Legislative
Intention.The
intention of Congress to confine the circumstances that can
constitute fraud as ground for annulment of marriage to three
cases may be deduced from the fact that, of all the causes of nullity
enumerated in Article 85, Civil Code, fraud is the only one given
special treatment in a subsequent article within the chapter on
void and voidable marriages. If its intention were otherwise,
Congress would have stopped at Article 85, for, anyway, fraud in
general is already mentioned therein as a cause for annulment.
But Article 86 was also enacted, expressly and specifically dealing
with "fraud referred to in number 4 of the preceding article," and
proceeds by enumerating the specific frauds (misrepresentation as
to identity, non-disclosure of a previous conviction, and
concealment of pregnancy), making it clear that Congress intended
to exclude all other frauds or deceits. To stress further such
intention, the enumeration of the specific frauds was followed by
the interdiction: "No other misrepresentation or deceit as to
character, rank, fortune or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage."
Same; Same; Same; Non-disclosure of a husband's premarital
relationship, not a fraud.Non-disclosure of a husband's premarital relationship with another woman is not one of the
enumerated circumstances that would constitute a ground for
annulment; and it is further excluded by the last paragraph of
Article 86, Civil Code. While a woman may detest such non-

disclosure of premarital lewdness or feel having been thereby

cheated into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was solemnly
given, for upon marriage she entered into an institution in which
society, and not herself alone, is interested. The lawmaker's intent
being plain, the Court's duty is to give effect to the same, whether
it agrees with the rule or not.
Pleadings and Practice;Reply; Cause of Action; New and
additional cause of action, not allowed in the reply.If in a reply a
party-plaintiff is not permitted to amend or change the cause of
action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445),
there is more reason not to allow such party to allege a new and
additional cause of action in the reply. Otherwise, the series of
pleadings of the parties could become interminable.

APPEAL from an order of the Juvenile and Domestic

Relations Court. Juliano-Agrava, J.
The facts are stated in the opinion of the Court.
Isabelo V. Castro for plaintiff-appellant.
REYES, J.B.L., J.:
Appeal from an order of dismissal, issued motu proprio by
the Juvenile & Domestic Relations Court, Manila, of a
complaint for annulment of marriage, docketed therein as
Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff,
vs. Fernando O. Palaroan, defendant."
The complaint in said Civil Case No. E-00431 alleged,inter
alia, that plaintiff Aurora and defendant Fernando were
married on 4 December 1953; that defendant Fernando filed
an action for annulment of the marriage on 7 January 1954
on the ground that his consent was obtained through force
and intimidation, which action was docketed in the Court of
First Instance of Manila as Civil Case No. 21589; that
1

judgment was rendered therein on 23 September 1959

dismissing the complaint of Fernando, upholding the validity
of the marriage and granting Aurora's counterclaim; that
(per paragraph IV) while the amount of the counterclaim was
being negotiated "to settle the judgment," Fernando had
divulged to Aurora that several months prior to their
marriage he had pre-marital relationship with a close
relative of his; and that "the nondivulgement to her of the
aforementioned pre-marital secret on the part of defendant
that definitely wrecked their marriage, which apparently
doomed to fail even before it had hardly commenced . . . frank
disclosure of which, certitude precisely precluded her, the
Plaintiff herein from going thru the marriage that was
solemnized between them constituted 'FRAUD', in obtaining
her consent, within the contemplation of No. 4 of Article 85 of
the Civil Code" (sic) (Record on Appeal, page 3). She prayed
for the annulment of the marriage and for moral damages.
Defendant Fernando, in his answer, denied the allegations
in paragraph IV of the complaint and denied having had premarital relationship with a close relative; he averred that
under no circumstance would he live with Aurora, as he had
escaped from her and from her relatives the day following
their marriage on 4 December 1953; that he denied having
committed any fraud against her. He set up the defenses of
lack of cause of action and estoppel, for her having prayed in
Civil Case No. 21589 for the validity of the marriage and her
having enjoyed the support that had been granted her. He
counterclaimed for damages for the malicious filing of the
suit. Defendant Fernando did not pray for the dismissal of
the complaint but for its dismissal "with respect to the
alleged moral damages."
Plaintiff Aurora filed a reply with answer to the
counterclaim, wherein she alleged:

1. "(1)that prior to their marriage on 4 December 1953,

he paid court to her, and pretended to shower her
with love and affection not because he really felt so
but because she merely happened to be the first girl
available to marry so he could evade marrying the
close relative of his whose immediate members of her
family were threatening him to force him to marry
her (the close relative);
2. "(2)that since he contracted the marriage for the
reason intimated by him, and not because he loved
her, he secretly intended from the very beginning not
to perform the marital duties and obligations
appurtenant thereto, and furthermore, he covertly
made up his mind not to live with her;
3. "(3)that the foregoing clandestine intentions intimated
by him were prematurely concretized for him, when
in order to placate and appease the immediate
members of the family of the first girl (referent being
the close relative) and to convince them of his
intention not to live with plaintiff, carried on a
courtship with a third girl with whom, after gaining
the latters love cohabited and had several children
during the whole range of nine years that Civil Case
No. 21589, had been litigated between them
(parties)"; (Record on Appeal, pages 10-11)
Failing in its attempt to have the parties reconciled, the
court set the case for trial on 26 August 1966 but it was
postponed. Thereafter, while reviewing the expediente, the
court realized that Aurora's allegation of the fraud was
legally insufficient to invalidate her marriage, and, on the
authority of Brown vs. Yambao, 102 Phil. 168, holding:
"It is true that the wife has not interposed prescription as a
defense. Nevertheless, the courts can take cognizance thereof,
because actions seeking a decree of legal separation, or annulment
2

of marriage, involve public interest, and it is the policy of our law

that no such decree be issued if any legal obstacles thereto appear
upon the record."the court a quo required plaintiff to show

3. (3)Concealment by the wife of the fact that at the time of

the marriage, she was pregnant by a man other than her
husband.

cause why her complaint should not be dismissed. Plaintiff

Aurora submitted a memorandum in compliance therewith,
but the court found it inadequate and thereby issued an
order, dated 7 October 1966, for the dismissal of the
complaint; it also denied reconsideration.

"No other misrepresentation or deceit as to character, rank,

fortune or chastity shall constitute Such fraud as will give grounds
for action for the annulment of marriage."

The main issue is whether or not the non-disclosure to a

wife by her husband of his pre-marital relationship with
another woman is a ground for annulment of marriage.
We must agree with the lower court that it is not. For
fraud as a vice of consent in marriage, which may be a cause
for its annulment, comes under Article 85, No. 4, of the Civil
Code, which provides:
"ART. 85. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
xxxxx
xxxxx
xxxxx
"(4) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as her
husband or his wife, as the case may be";

This fraud, as vice of consent, is limited exclusively by law to

those kinds or species of fraud enumerated in Article 86, as
follows:
"ART. 86. Any of the following circumstances shall constitute fraud
referred to in number 4 of the preceding article:
1. (1)Misrepresentation as to the identity of one of the
contracting parties;
2. (2)Non-disclosure of the previous conviction of the other
party of a crime involving moral turpitude, and the
penalty imposed was imprisonment for two years or more;

102

102

SUPREME COURT
REPORTS
ANNOTATED
Anaya vs. Palaroan

The intention of Congress to confine the circumstances that

can constitute fraud as ground for annulment of marriage to
the foregoing three cases may be deduced from the fact that,
of all the causes of nullity enumerated in Article 85, fraud is
the only one given special treatment in a subsequent article
within the chapter on void and voidable marriages. If its
intention were otherwise, Congress would have stopped at
Article 85, for, anyway, fraud in general is already mentioned
therein as a cause for annulment. But Article 86 was also
enacted, expressly and specifically dealing with "fraud
referred to in number 4 of the preceding article," and
proceeds
by
enumerating
the
specific
frauds
(misrepresentation as to identity, nondisclosure of a previous
conviction, and concealment of pregnancy), making it clear
that Congress intended to exclude all other frauds or deceits.
To stress further such intention, the enumeration of the
specific frauds was followed by the interdiction: "No other
misrepresentation or deceit as to character, rank, fortune or
chastity shall constitute such fraud as will give grounds for
action for the annulment of marriage."
Non-disclosure of a husband's pre-marital relationship
with another woman is not one of the enumerated
3

circumstances that would constitute a ground for annulment;

and it is further excluded by the last paragraph of the article,
providing that "no other misrepresentation of deceit as to . . .
chastity" shall give ground for an action to annul a marriage.
While a woman may detest such non-disclosure of premarital
lewdness or feel having been thereby cheated into giving her
consent to the marriage, nevertheless the law does not
assuage her grief after her consent was solemnly given, for
upon marriage she entered into an institution in which
society, and not herself alone, is interested. The lawmaker's
intent being plain, the Court's duty is to give effect to the
same, whether it agrees with the rule or not.
But plaintiff-appellant Anaya emphasizes that not only
has she alleged "non-divulgement" (the word chosen by her)
of the pre-marital relationship of her husband with another
woman as her cause of action, but that she has,
103

VOL. 36, NOVEMBER

26, 1970
Anaya vs. Palaroan

103

likewise, alleged in her reply that defendant Fernando paid

court to her without any intention of complying with his
marital duties and obligations and covertly made up his
mind not to live with her. Plaintiff-appellant contends that
the lower court erred in ignoring these allegations in her
reply.
This second set of averments which were made in the
reply (pretended love and absence of intention to perform
duties of consortium) is an entirely new and additional
"cause of action." According to the plaintiff herself, the
second set of allegations is "apart, distinct and separate from
that earlier averred in the Complaint x x x" (Record on
Appeal, page 76). Said allegations were, therefore,
improperly alleged in the reply, because if in a reply a partyplaintiff is not permitted to amend or change the cause of

action as set forth in his complaint (Calo vs. Roldan, 76 Phil.

445), there is more reason not to allow such party to allege a
new and additional cause of action in the reply. Otherwise,
the series of pleadings of the parties could become
interminable.
On the merits of this second fraud charge, it is enough to
point out that any secret intention on the husband's part not
to perform his marital duties must have been discovered by
the wife soon after the marriage: hence her action for
annulment based on that fraud should have been brought
within four years after the marriage. Since appellant's
wedding was celebrated in December of 1953, and this
ground was only pleaded in 1966, it must be declared already
barred.
FOR THE FOREGOING REASONS, the appealed order is
hereby affirmed. No costs.
Concepcion, C.J.,Makalintal, Zaldivar, Castro,Fernan
do, Teehankee,Barredo and Villamor, JJ.,concur.
Dizon and Makasiar, JJ., are on official leave.
Order affirmed.
Notes.Annulment of marriage.The fundamental policy
of the State, which regards marriage as indissoluble
104

104

SUPREME COURT
REPORTS
ANNOTATED
Gayon vs. Gayon

and sacred, being the foundation upon which society rests, is

to be cautious and strict in granting annulment of marriage
(Roque vs. Encarnacion, L-6505, August 23, 1954, 50 O.G.
4193; Buccat vs. De Buccat, 72 Phil. 19).
As such, in order to annul a marriage, clear and
undeniable proofs are necessary (Buccat vs. De Buccat,
4

supra). A motion for summary judgment annulling a

marriage cannot properly be granted regardless of any
genuine issue raised by the pleadings (Roque vs.
Encarnacion, supra).
To annul a marriage on the ground of fraud, it would have
to be proved that the plaintiff's consent had been secured by
fraud or deceit; that is, that the fraudulent representations of
the defendant had actually induced her to contract marriage,
in the firm belief that they were true (Garcia vs.
Montague, 12 Phil. 480).
Failure to sign the marriage certificate or contract by the
wedded couple, the witnesses and the priest does not
constitute a ground for nullity, it being not one of the causes
for annulment of marriage and the signing thereof being
required by the statute simply for the purpose of evidencing
the act of marriage and to prevent fraud (De Loria vs. Apelan
Felix, L-9005, June 20, 1958). Nor do the priest's failure to
make and file the affidavit required by Sections 20 and 21 of
the Marriage Law for in articulo mortis marriages and to
furnish the parties with copies of the marriage certificate
constitute a ground for annulment, especially where it was
caused by an emergency ( De Loria vs. Apelan Felix, supra).
_______________

[No. L-15853. July 27, 1960]

FERNANDO AQUINO, petitioner, vs. CONCHITA DELIZO,
respondent.
1. 1.MARRIAGE;ANNULMENT;CONCEALMENT
OF
PREGNANCY AT TIME OF MARRIAGE CONSTITUTES
FRAUD
AS
GROUND
FOR
ANNULMENT.
Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband constitutes fraud and is a ground for annulment
of marriage (Art. 85, par. (4) in relation to Art. 86, par. (3),
New Civil Code).
1. 2.NEW TRIAL; MERE FAILURE TO ANSWER MOTION
IS NEITHER EVIDENCE OF COLLUSION NOR
GROUND FOR DENIAL.When the evidence sought to
be introduced at the new trial, taken together with what
has already been adduced would be sufficient to sustain
the fraud alleged by plaintiff, the motion praying
1. for new trial should not be denied simply because defendant
f ailed to file her answer thereto. Such f ailure cannot be
taken as evidence of collusion, especially where a
provincial fiscal has been ordered to represent the
Government precisely to prevent such collusion.

PETITION for review by certiorari of a decision of the Court

of Appeals.
The facts are stated in the opinion of the Court.
N. L. Dasig and C. L. Francisco for petitioner.
Federico Roy for respondent.
GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the

Court of Appeals affirming that of the Court of First Instance
of Rizal which dismissed petitioner's complaint for
annulment of his marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6,
1955, was based on the ground of fraud, it being alleged,
among other things, that defendant Conchita Delizo, herein
respondent, at the date of her marriage to plaintiff, herein
petitioner Fernando Aquino, on December 27, 1954,
concealed from the latter the fact that she was pregnant by
another man, and sometime in April, 1955, or about four
months after their marriage, gave birth to a child. In her
answer, defendant claimed that the child was conceived out
of lawful wedlock between her and the plaintiff.
At the trial, the attorneys for both parties appeared and
the court a quo ordered Assistant Provincial Fiscal Jose Goco
to represent the State in the proceedings to prevent collusion.
Only the plaintiff however, testified and the only
documentary evidence presented was the marriage contract
between the parties. Def endant neither appeared nor
presented any evidence despite the reservation made by her
counsel that he would present evidence on a later date.
On June 16, 1956, the trial courtnoting that no birth
certificate was presented to show that the child was born
within 180 days after the marriage between the parties, and
holding that concealment of pregnancy as alleged by plaintiff
does not constitute such fraud as would annul a marriage
dismissed the complaint. Through a verified "petition to
reopen for reception of additional evidence", plaintiff tried to
present the certificates of birth and delivery of the child born
of the defendant on April 26, 1955, which documents,
according to him, he had failed to secure earlier and produce
before the trial court thru excusable negligence. The petition,
however, was denied.
6

On appeal to the Court of Appeals, that court held that

there has been excusable neglect in plaintiff's inability to
present the proof of the child's birth, through her birth
certificate, and for that reason the court a quo erred in
denying the motion for reception of additional evidence. On
the theory, however, that it was not impossible for plaintiff
and defendant to have had sexual intercourse during their
engagement so that the child could be their own, and finding
unbelievable plaintiff's claim that he did not notice or even
suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of
the complaint.
On March 17, 1959, plaintiff filed a motion praying that
the decision be reconsidered, or, if such reconsideration be
denied, that the case be remanded to the lower court for new
trial. In .support of the motion, plaintiff attached as annexes
thereof the following documents:
"1.Affidavit of Cesar Aquino (Annex A) (defendant's
brotherin-law and plaintiff's brother, with whom defendant
was living at the time plaintiff met, courted and married
her, and with whom defendant has begotten two more
children, aside from her first born, in common-law
relationship) admitting that he is the father of defendant's
first born, Catherine Bess Aquino, and that he and
defendant hid her pregnancy from plaintiff at the time of
plaintiffs marriage to defendant;
1. "2.Affidavit of defendant, Conchita Delizo (Annex 'B')
admitting her pregnancy by Cesar Aquino, her
brother-in-law and plaintiff's own brother, at the time
of her marriage to plaintiff and her having hidden
this fact from plaintiff before and up to the time of
their marriage;
2. "3.Affidavit of Albert Powell (Annex 'C') stating that he
knew that Cesar Aquino and defendant lived together

as husband and wife before December 27, 1954, the

date of plaintiff's marriage to defendant;
3. "4.Birth Certificate of defendant's first born, Catherine
Bess Aquino showing her date of birth to be April 26,
1955;
4. "5.Birth Certificate (Annex 'D') of Carrolle Ann
Aquino, the second child of defendant with Cesar
Aquino, her brother-in-law;
5. "6.Birth Certificate (Annex "E") of Chris Charibel
Aquino, the third child of Cesar Aquino and
defendant; and
6. "7.Pictures of defendant showing her natural
plumpness as early as 1952 to as late as November,
1954, the November, 1954 photo itself does not show
defendant's pregnancy which must have been almost
four months old at the time the picture was taken."
Acting upon the motion, the Court of Appeals ordered the
defendant Conchita Delizo and Assistant Provincial Fiscal of
Rizal, who was representing the Government, to answer the
motion for reconsideration, and deferred action on the prayer
for new trial until after the case is disposed of As both the
defendant and the fiscal failed to file an answer, and .stating
that it "does not believe the veracity of the contents of the
motion and its annexes," the Court of Appeals, on August 6,
1959, denied the motion. From that order, the plaintiff
brought the case to this Court thru the present petition for
certiorari.
After going over the record of the case, we find that the
dismissal of plaintiff's complaint cannot be sustained.
Under the new Civil Code, concealment by the wife of the
fact that at the time of the marriage, she was pregnant by a
man other than her husband constitutes fraud and is ground
for annulment of marriage. (Art. 85, par. (4) in relation to
Art. 86, par. (3). In the case of Buccat vs.Buccat (72 Phil., 19)
7

cited in the decision sought to be reviewed, which was also an

action for the annulment of
25

VOL. 109, JULY 27, 1960

Aquino vs. Delizo

25

marriage on the ground of fraud, plaintiff's claim that he did

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

The appellate court also said that it was not impossible for
plaintiff and defendant to have had sexual intercourse before
they got married and therefore the child could be their own.
This statement, however, is purely conjectural and finds no
support or justification in the record.
26

26

PHILIPPINE REPORTS
ANNOTATED
Palma vs. Hon. Fernandez,
etc.

Upon the other hand, the evidence sought to be introduced at

the new trial, taken together with what has already been
adduced would, in our opinion, be sufficient to sustain the
fraud alleged by plaintiff. The Court of Appeals should,
therefore, not have denied the motion praying for new trial
simply because defendant failed to file her answer thereto.
Such failure of the defendant cannot be taken as evidence of
collusion, especially since a provincial fiscal has been ordered
to represent the Government precisely to prevent such
collusion. As to the veracity of the contents of the motion and
its annexes, the same can best be determined only after
hearing evidence. In the circumstances, we think that justice
would be better served if a new trial were ordered.
Wherefore, the decision complained of is set aside and the
case remanded to the court a quo for new trial. Without costs.
Pars, C.
J., Bengzon,Montemayor, Labrador,Concepcin, and Reyes, J.
B. L., JJ., concur.
Barrera, J., concurs in the result.
Decision set aside.
________________

[No. L-12790. 31 August 1960]

JOEL JIMENEZ, plaintiff and appellee, vs. REMEDIOS
CAIZARES, defendant. Republic of the Philippines,
intervenor and appellant.
1. 1.MARRIAGE; ITS NATURE AND SANCTITY; SECURITY
AND STABILITY OF STATE.Marriage in this country
is an institution in which the community is deeply
interested. The state has surrounded it with safeguards to
maintain its purity, continuity and
274

2
74

PHILIPPINE
REPORTS
ANNOTATED
Jimenez vs. Republic of
the Philippines

1. permanence. The security and stability of the state are

largely dependent upon it. It is in the interest and duty of
each and every member of the community to prevent the
bringing about of a condition that would shake its
foundation and ultimately lead to its destruction. The
incidents of the status are governed by law, not by will of
the parties.
1. 2.ID.; ANNULMENT;IMPOTENCY; LONE TESTIMONY
OF HUSBAND; CASE AT BAR.The law specifically
enumerates the legal grounds that must be proved to exist
by indubitable evidence, to annul a marriage. In the case
at bar, the annulment of the marriage in question was
decreed upon the sole testimony of the husband who was
expected to give testimony tending or aiming at securing
the annulment of his marriage he sought and seeks.
Whether the wife is really impotent cannot be deemed to

have been satisfactorily established because from the

commencement of the proceedings until the entry of the
decree she had abstained from taking part therein.
1. 3.ID.; WOMAN'S
REFUSAL
FOR
PHYSICAL
EXAMINATION; NOT SUPPRESSION OF EVIDENCE.
Although the wife's refusal to be examined or failure to
appear in court show indifference on her part, yet from
such attitude the presumption arising out of the
suppression of evidence could not arise or be inferred,
because women of this country are by nature coy, bashful
and shy and would not submit to a physical examination
unless compelled to by competent authority. This the court
may do without doing violence to and infringing upon her
constitutional right. A physical examination in this case is
not self-incrimination. She is not charged with any offense.
She is not being compelled to be a witness against herself.
Impotency being an abnormal condition should not be
presumed.
1. 4.ID.; ANNULMENT;PRESUMPTION
OF
POTENCY; HUSBAND'S
LONE
TESTIMONY
INSUFFICIENT.The presumption is in favor of potency.
The lone testimony of the husband that his wife is
physically incapable of sexual intercourse is insufficient to
tear asunder the ties that have bound them together as
husband and wife.

APPEAL from a judgment of the Court of First Instance of

Zamboanga City. Mijares, J.
The facts are stated in the opinion of the Court.
Acting Solicitor General Guillermo E. Torres andSolicitor
Pacifico P. de Castrofor appellant.
275

VOL. 109, AUGUST 31,

275
9

1960
Jimenez vs. Republic of the
Philippines
Climaco, Ascarraga & Silangfor appellee.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of First
Instance of Zamboanga the plaintiff Joel Jimenez prays for a
decree annulling his marriage to the defendant Remedios
Caizares contracted on 3 August 1950 before a judge of the
municipal court of Zamboanga City, upon the ground that the
orifice of her genitals or vagina was too small to allow the
penetration of a male organ or penis for copulation; that the
condition of her genitals as described above existed at the
time of marriage and continues to exist; and that for that
reason he left the conjugal home two nights and one day after
they had been married. On 14 June 1955 the wife was
summoned .and served with a copy of the complaint. She did
not file an answer. On 29 September 1956, pursuant to the
provisions of article 88 of the Civil Code, the Court directed
the city attorney of Zamboanga to inquire whether there was
a collusion between the parties and, if there was no collusion,
to intervene for the State to see that the evidence for the
plaintiff is not a frame-up, concocted or fabricated. On 17
December 1956 the Court entered an order requiring the
defendant to submit to a physical examination by a
competent lady physician to determine her physical capacity
for copulation and to submit, within ten days from receipt of
the order, a medical certificate on the result thereof. On 14
March 1957 the defendant was granted additional five days
from notice to comply with the order of 17 December 1956
with warning that her failure to undergo medical
examination and submit the required doctor's certificate
would be deemed lack of interest on her part in the case and

that judgment upon the evidence presented by her husband

would be rendered.
After hearing, at which the defendant was not present, on
11 April 1957 the Court entered a decree annulling the
marriage between the plaintiff and the defendant. On 26
April 1957 the city attorney filed a motion for
276

276

PHILIPPINE REPORTS
ANNOTATED
Jimenez vs. Republic of the
Philippines

reconsideration of the decree thus entered, upon the ground,

among others, that the defendant's impotency has not been
satisfactorily established as required by law; that she had
not been physically examined because she had refused to be
so examined; that instead of annulling the marriage the
Court should have punished her for contempt of court and
compelled her to undergo a physical examination and submit
a medical certificate; and that the decree sought to be
reconsidered would open the door to married couples, who
want to end their marriage to collude or connive with each
other by just alleging impotency of one of them. He prayed
that the complaint be dismissed or that the wife be subjected
to a physical examination. Pending resolution of his motion,
the city attorney timely appealed from the decree. On 13 May
1957 the motion for reconsideration was denied.
The question to determine is whether the marriage in
question may be annulled on the strength only of the lone
testimony of the husband who claimed and testified that his
wife was and is impotent. The latter did not answer the
complaint, was absent during the hearing, and refused to
submit to a medical examination.
Marriage in this country is an institution in which the
community is deeply interested. The state has surrounded it
with safeguards to maintain its purity, continuity and
10

permanence. The security and stability of the state are

largely dependent upon it. It is the interest and duty of each
and every member of the community to prevent the bringing
about of a condition that would shake its foundation and
ultimately lead to its destruction. The incidents of the status
are governed by law, not by will of the parties. The law
specifically enumerates the legal grounds, that must be
proved to exist by indubitable evidence, to annul a marriage.
In the case at bar, the annulment of the marriage in question
was decreed upon

incapable of sexual intercourse is insufficient to tear asunder

the ties that have bound them together as husband and wife.
The decree appealed from is set aside and the case
remanded to the lower court for further proceedings in
accordance with this decision, without pronouncement as to
costs.
Pars, C.
J., Bengzon,Bautista
Angelo, Labrador,Concepcin, Reyes, J.
B.
L.,Barrera, Gutierrez David, andDizon, JJ. concur.
Decree set aside.

277
_______________

VOL. 109, AUGUST 31, 277

1960
Jimenez vs. Republic of the
Philippines

Section 1, paragraph 18, Article III of the Constitution.

Marciano vs. San Jos, 89 Phil., 62.

the sole testimony of the husband who was expected to give

testimony tending or aiming at securing the annulment of his
marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily
established, because from the commencement of the
proceedings until the entry of the decree she had abstained
from taking part therein. Although her refusal to be
examined or failure to appear in court show indifference on
her part, yet from such attitude the presumption arising out
of the suppression of evidence could not arise or be inferred,
because women of this country are by nature coy, bashful and
shy and would not submit to a physical examination unless
compelled to by competent authority. This the Court may do
without doing violence to and infringing upon her
constitutional right. A physical examination in this case is
not self-incrimination. She is not charged with any offense.
She is not being -compelled to be a witness against
herself. "Impotency being an abnormal condition should not
be presumed. The presumption is in favor of potency." The
lone testimony of the husband that his wife is physically
1

11

[No. L-13553. February 23, 1960]

JOSE
DE
OCAMPO,
petitioner, vs. SERAFINA
FLORENCIANO, respondent.

to search for his wife and take her home does not
constitute condonation or consent to the adultery. It was
not his duty to search for her.

1. 1.LEGAL
SEPARATION;CONFESSION
OF
JUDGMENT;EXISTENCE
OF
EVIDENCE
OF
ADULTERY INDEPENDENTLY OF CONFESSION.
Where there is evidence of the adultery independently of
the defendant's statement agreeing to the legal separation,
the decree of separation should be granted, since it would
not be based on the confession but upon the evidence
presented by the plaintiff. What the law prohibits is a
judgment based exclusively on

PETITION for review by certiorari of a decision of the Court

of Appeals.
The facts are stated in the opinion of the Court.
Joselito J. Coloma for petitioner.
No appearance for respondent.

36

3
PHILIPPINE
REPORTS ANNOTATED
Ocampo vs. Florenciano
1. defendant's confession.
1. 2.ID.; ID.;ADMISSIBILITY OF CONFESSION MADE
OUTSIDE OF COURT.Article 101 of the new Civil Code
does not exclude, as evidence, any admission or confession
made by the defendant outside of the court.
1. 3.ID.; ID.; COLLUSION MAY NOT BE INFERRED FROM
CONFESSION.Collusion may not be inferred from the
mere fact that the guilty party confesses to the offense of
adultery, desires the divorce and makes no defense.
1. 4.ID.; CONDONATION;FAILURE OF HUSBAND TO
SEARCH FOR ERRING WIFE.In the case at bar, the
wife left her husband after the latter discovered her dates
with other men.Held: The failure of the husband actively

BENGZON, J.:
Action for legal separation by Jose de Ocampo against his
wife Serafina, on the ground of adultery. The court of first
instance of Nueva Ecija dismissed it. The Court of Appeals
affirmed, holding there was confession of judgment, plus
condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of
articles 100 and 101 of the New Civil Code, which for
convenience are quoted herewith:
"ART. 100.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 spouses are
offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.''
"ART. 101.No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a
collusion be
37

VOL. 107, FEBRUARY 37

23, 1960
Ocampo vs. Florenciano
12

tween the parties exists. If there is no collusion, the prosecuting

attorney shall intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated."

The record shows that on July 5, 1955, the complaint for

legal separation was filed. As amended, it described their
marriage performed in 1938, and the commission of adultery
by Serafina, in March 1951 with Jose Arcalas, and in June
1955 with Nelson Orzame.
Because the defedant made no answer, the court defaulted
her, and pursuant to Art. 101 above, directed the provincial
fiscal to investigate whether or not collusion existed between
the parties. The fiscal examined the defendant under oath,
and then reported to the Court that there was no collusion.
The plaintiff presented his evidence consisting of the
testimony of Vicente Medina, Ernesto de Ocampo, Cesar
Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin
Gubat.
According to the Court of Appeals, the evidence thus
presented shows that "plaintiff and defendant were married
in April 5, 1938 by a religious ceremony in Guimba, Nueva
Ecija, and had lived thereafter as husband and wife. They
begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that
his wife was betraying his trust by maintaining illicit
relations with one Jose Arcalas. Having found the defendant
carrying marital relations with another man plaintiff sent
her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while
in the said city defendant was going out with several other
men, aside from Jose Arcalas. Towards the end of June, 1952,
when defendant had finished studying her course, she left
plaintiff and since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of
having illicit relations with another man by the name of
Nelson Orzame. Plaintiff signified his intention

38

38

PHILIPPINE REPORTS
ANNOTATED
Ocampo vs. Florenciano

of filing a petition for legal separation, to which defendant

manifested her conformity provided she is not charged with
adultery in a criminal action. Accordingly, plaintiff filed on
July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to
legal separation on account of the defendant's adultery with
Jose Arcalas had prescribed, because his action was not filed
within one year from March 1951 when plaintiff discovered
her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.
As to the adultery with Nelson Orzame, the appellate
court found that in the night of June 18, 1955, the husband
upon discovering the illicit connection, expressed his wish to
file a petition for legal separation and defendant readily
agreed to such filing. And when she was questioned by the
Fiscal upon orders of the court, she reiterated her conformity
to the legal separation even as she admitted having had
sexual relations with Nelson Orzame. Interpreting these
facts virtually to mean a confesssion of judgment the
Appellate Court declared that under Art. 101, legal
separation could not be decreed.
As we understand the article, it does not exclude, as
evidence, any admission or confession made by the defendant
outside of the court. It merely prohibits a decree of
separation upon a confession of judgment. Confession of
judgment usually happens when the defendant appears in
court and confesses the right of plaintiff to judgment or files
a pleading expressly agreeing to the plaintiff's demand. This
did not occur.
1

13

Yet, even supposing that the above statement of defendant

constituted practically a confession of judgment, inasmuch as
there is evidence of the adulteryindependently
________________
1

Brown vs. Yambao, 102 Phil., 168.

Cf. Phil. National Bank vs.Ingersoll, 43 Phil., 444, See generally Corpus

Juris Secundum "Judgments" sec. 134.

39

VOL. 107, FEBRUARY 39

23, 1960
Ocampo vs. Florenciano
of such statement, the decree may and should be granted,
since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is
a judgment based exclusively or mainly on defendant's
confession. If a confession defeats the actionipso facto, any
defendant who opposes the separation will immediately
confess judgment, purposely to prevent it.
The mere circumstance that defendant told the Fiscal that
she "liked also" to be legally separated from her husband, is
no obstacle to the successful prosecution of the action. When
she refused to answer the complaint, she indicated her
willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes
precautions against collusion, which implies more than
consent or lack of opposition to the agreement.
Needless to say, when the court is informed that
defendant equally desires the separation and admitted the
commission of the offense, it should be doubly careful lest a
collusion exists. (The Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the
agreement.

"* * * between husband and wife for one of them to commit, or to

appear to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence of a
valid defense, for the purpose of enabling the other to obtain a
divorce. This agreement, if not express, may be implied from the
acts of the parties. It is a ground for denying the divorce."
(Griffiths vs. Griffiths,
69
N.
J.
Eq.
689
60
Atl.
1099; Sandoz vs.Sandoz, 107 Ore. 282, 214 Pas. 590.)

In this case, there would be collusion if the parties

arranged to make it appear that a matrimonial offense
been committed although it was not, or if the parties
connived to bring about a legal separation even in
absence of grounds therefor.

had
had
had
the

40

40

PHILIPPINE REPORTS
ANNOTATED
Ocampo vs. Florenciano

Here, the offense of adultery had really taken place,

according to the evidence. The defendant could not
havefalsely told the adulterous acts to the Fiscal, because her
story might send her to jail the moment her husband
requests the Fiscal to prosecute. She could not have practiced
deception at such a personal risk.
In this connection, it has been held that collusion may not
be inferred from the mere fact that the guilty party confesses
to the offense and thus enables the other party to procure
evidence necessary to prove it. (Williams vs.Williams, [N. Y.]
40 N. E. (2d) 1017; Rosenweig vs.Rosenweig, 246 N. Y. Suppl.
231; Conyers, vs. Conyers, 224 S. W. [2d] 688.)
And proof that the defendant desires the divorce and
makes
no
defense,
is
not
by
itself
collusion.
(Pohlmanvs. Pohlman, [N. J.] 46 Atl. Rep. 658.)
We do not think plaintiff's failure actively to search for
defendant and take her home (after the latter had left him in
1952) constituted condonation or consent to her adulterous
14

relations with Orzame. It will be remembered that she "left"

him after having sinned with Arcalas and after he had
discovered her dates with other men. Consequently, it
was not his duty to search for her to bring her home.' Hers
was the obligation to return.
Two decisions are cited wherein from apparently similar
circumstances, this Court inferred the husband's consent to
or condonation of his wife's misconduct. However, upon
careful examination, a vital difference will be found: in both
instances, the husband had abandoned his wife; here it was
the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's
petition we hereby reverse the appealed decision and decree
a legal separation between these spouses, with all the
consequent effects. Costs of all instances against Serafina
Florenciano. So ordered.
3

________________
3

People vs. Sensano, 58 Phil., 73;People vs. Guinucud, 58 Phil., 621.

41

VOL. 107, FEBRUARY

41
23, 1960
Luchayco and Vda. de
Villanueva vs. Hon. Reyes and
Hodges
Pars,
C.
J., Padilla,Montemayor, Labrador,Concepcin, Reyes, J. B.
L.,Endencia, Barrera, andGutirrez David, JJ., concur.
Decision reversed.
_____________

15