Republic of the Philippines Petitioners spouses were charged on August 25, 1970 for estafa before
SUPREME COURT the City Court of Pasay1 for allegedly having misappropriated a lady's
Manila
EN BANC
G.R. No. L-38161 March 29, 1974
JUAN BELLO, FILOMENA C. BELLO, petitioners,
vs.
HON. COURT OF APPEALS, * HON. FRANCISCO LLAMAS, as
Judge of Pasay City Court, and REPUBLIC OF THE
PHILIPPINES, respondents.
Martinez and Martinez for petitioners.
Office of the Solicitor General, Dept. of Justice, for respondent.
TEEHANKEE, J.:p
The Court holds that the court of first instance of Pasay City in an appeal
erroneously taken to it from the city court's judgment convicting
petitioners-accused of the charge of estafa within the concurrent original
jurisdiction of said courts should grant petitioners-accused's timely
petition for certifying their appeal to the Court of Appeals as the proper
court rather than peremptorily grant the prosecution's motion for
dismissal of the appeal and order the remand of the case to the city
court for execution of judgment. The appellate court's decision denying
the relief sought by petitioners of compelling the elevation of their appeal
to it as the proper court simply because of the non-impleader of the court
of first instance as a nominal party notwithstanding that it was duly
represented by the respondent People as the real party in interest
through the Solicitor General who expressed no objection to the setting
aside of the court of first instance's dismissal order is set aside as
sacrificing substance to form and subordinating substantial justice to a
mere matter of procedural technicality.
ring with a value of P1,000.00 received by them from Atty. Prudencio de
Guzman for sale on commission basis. After trial, they were convicted
and sentenced under respondent city court's decision of February 26,
1971 to six (6) months and one (1) day of prision correccional and to
indemnify the offended party in the sum of P1,000.00 with costs of suit.
Petitioners filed their notice of appeal of the adverse judgment to the
Court of First Instance of Pasay City, but the prosecution filed a "petition
to dismiss appeal" on the ground that since the case was within
the concurrent jurisdiction of the city court and the court of first instance
and the trial in the city court had been duly recorded, the appeal should
have been taken directly to the Court of Appeals as provided by section
87 of the Judiciary Act, Republic Act 296, as amended.2
Petitioners opposed the prosecution's dismissal motion and invoking the
analogous provision of Rule 50, section 3 directing that the Court of
Appeals in cases erroneously brought to it "shall not dismiss the appeal,
but shall certify the case to the proper court, with a specific and clear
statement of the grounds therefor," prayed of the court of first instance if
it should find the appeal to have been wrongly brought before it, to
certify the same "to either the Court of Appeals or the Supreme Court."3
The court of first instance per its order of October 29, 1971 did find that
the appeal should have been taken directly to the Court of Appeals but
ordered the dismissal of the appeal and remand of the records to the city
court "for execution of judgment."4
Petitioners aver that they were not notified of the order of dismissal of
their appeal and learned of it only when they were called by the Pasay
city court for execution of the judgment of conviction. Hence, they filed
with the city court their "motion to elevate appeal to Court of Appeals" of
December 7, 1971 stating that "through inadvertence and/or excusable
neglect" they had erroneously filed a notice of appeal to the court of first
instance instead of to the Court of Appeals as the proper court and
prayed that the city court, following precedents of this Court remanding
appeals before it to the proper court instead of dismissing appeals,
"elevate the records ... to the Court of Appeals for proper review."5
Respondent city court per its order of December 11, 1971 denied
petitioners' motion "for having been erroneously addressed to this court"
instead of to the court of first instance6 ignoring petitioners' predicament
that the court of first instance had already turned them down and
ordered the dismissal of their appeal without notice to them and that as a
consequence it was poised to execute its judgment of conviction against
them.
Petitioners spouses then filed on January 14, 1972 their petition for
prohibition and mandamus against the People and respondent city court
to prohibit the execution of the judgment and to compel respondent city
court to elevate their appeal to the Court of Appeals.7
The Solicitor General filed respondents' answer to the petition
manifesting that "we shall not interpose any objection whichever view
point is adopted by this Honorable Court in resolving the two apparently
conflicting or clashing principles of law finality of judicial decision or
equity in judicial decision," after observing that "(F)rom the view point of
equity considering that petitioners' right to appeal lapsed or was lost
through the fault, though not excusable, of their counsel, and
compounded by the alleged error of judgment committed by the Court of
First Instance to which the appeal was erroneously brought, we
sympathize with petitioners' plight."
The Court of Appeals, however, per its decision of December 17, 1973
dismissed the petition, after finding that the city court's judgment was
directly appealable to it. Although recognizing that the "CFI instead of
dismissing appeal, could have in the exercise of its inherent powers
directed appeal to be endorsed to this Court of Appeals" it held that
since petitioners did not implead the court of first instance as "principal
party respondent" it could not "grant any relief at all even on the
assumption that petitioners can be said to deserve some equities," as
follows:
... therefore, when they appealed to CFI, that
was procedurally wrong; of course, CFI instead of
dismissing appeal, could have in the exercise of
its inherent powers, directed appeal to be endorsed to
this Court of Appeals, but when instead of doing so, it
dismissed, it also had power to do so, and correction of
it is difficult to see to be remediable by mandamus, but
ignoring this altogether, what this Court finds is that
since it was CFI that dismissed the appeal and
according to petitioners, wrongly, it must follow that if
CFI was wrong, this plea for mandamus to compel it to
act "correctly" should have been directed against said
CFI, it should have been the CFI, Hon. Francisco de la
Rosa, who should have been made under Rule 65 Sec.
3, herein principal party respondent, but he was not,
this being the situation, this Court can not see how it
can grant any relief at all even on the assumption that
petitioners can be said to deserve some equities.
Petitioners moved for reconsideration on January 2, 1974 8 and for
elevation of their appeal to the Court of Appeals, stressing the merits of
their appeal and of their defense to the charge, viz, that the offended
party Atty. de Guzman had represented their son who was a suspect
with two others for robbery before the Pasay city fiscal's office and upon
dismissal of the charge demanded payment from them as parents the
sum of P1,000.00 as attorney's fees, and since they had no money to
pay him required them to sign the receipt dated June 25, 1970 in his
favor for an imaginary lady's ring to sell "on commission basis" for
P1,000.00 (their "commission" to be any overprice) to assure payment of
the sum by the stated deadline of July 9, 1970 under penalty, of criminal
prosecution for estafa; and that they had then newly met Atty. de
Guzman, whose services had been secured not by them but by the
family of one of the other suspects, implying the incredibility of his
entrusting a lady's ring to both of them (husband and wife) for sale on
commission basis when his only association with them was his demand
of payment of his P1,000-attorney's fee for having represented their son-
suspect.
Reconsideration having been denied by the appellate court "for lack of
sufficient merit," petitioners filed the present petition for review.9 The
Court required the Solicitor General's comment on behalf of the People
of the Philippines, and upon receipt thereof resolved to consider the
case as a special civil action with such comment as answer and the case
submitted for decision in the interest of justice and speedy adjudication.
The Court finds merits in the petition and holds that the court of first
instance acted with grave abuse of discretion in dismissing petitioners-
accused's appeal which was erroneously brought to it and ordering
remand of the records to the city court for execution of judgment instead
of certifying and endorsing the appeal to the Court of Appeals as the
proper court as timely prayed for by petitioners-accused in their
opposition to the prosecution's motion to dismiss appeal. We find that
the Court of Appeals also acted with grave abuse of discretion in
dismissing their petition instead of setting aside the challenged order of
the court of first instance peremptorily dismissing the appeal pursuant to
which respondent city court was poised to execute its judgment of
conviction simply because the court of first instance which is but
a nominal party had not been impleaded as party respondent in
disregard of the substantive fact that the People as plaintiff and the real
party in interest was duly impleaded as principal party respondent and
was represented in the proceedings by the Solicitor General.
The appellate court while recognizing that petitioners' appeal taken to
the court of first instance was "procedurally wrong" and that the court of
first instance "in the exercise of its inherent powers could have certified
the appeal to it as the proper court instead of dismissing the appeal,
gravely erred in holding that it could not "correct" the court of first
instance's "wrong action" and grant the relief sought of having the
appeal elevated to it since said court's presiding judge "who should have
been-made under Rule 65, sec. 3 10 herein principal party respondent,
but he was not." The Court has always stressed as in Torre vs.
Ericta 11 that a respondent judge is "merely a nominal party" in special
civil actions for certiorari, prohibition and mandamus and that he "is not a
person "in interest" within the purview (of Rule 65, section 5 12)" and
"accordingly, he has no standing or authority to appeal from or seek a
review on certiorari" of an adverse decision of the appellate court setting
aside his dismissal of a party's appeal and issuing the writ
of mandamus for him to allow the appeal.
It is readily seen from the cited Rule that the court of first instance or
presiding judge who issued the challenged order or decision is but
a nominal party, the real parties in interest being "the person or persons
interested in sustaining the proceedings in the court" and who are
charged with the duty of appearing and defending the challenged act
both "in their own behalf and in behalf of the court or judge affected by
the proceedings." Hence, theformal impleading of the court of first
instance which issued the challenged order of dismissal was not
indispensable and could be "overlooked in the interest of speedy
adjudication." 13
Since the real party in interest, the People as plaintiff in the criminal
proceeding against petitioners-accused was duly impleaded and
represented by the Solicitor General to defend the proceedings in the
court of first instance and had expressed no objection to the appellate
court's setting aside of the court of first instance's dismissal order, in the
interest of justice and equity the appellate court's act of dismissing the
petition and denying the relief sought of endorsing the appeal to the
proper court simply because of the non impleader of the court of first
instance as a nominal party was tantamount to sacrificing substance to
form and to subordinating substantial justice to a mere matter of
procedural technicality. The procedural infirmity of petitioners mis-
directing their appeal to the court of first instance rather than to the Court
of Appeals, which they had timely sought to correct in the court of first
instance itself by asking that court to certify the appeal to the Court of
Appeals as the proper court, should not be over-magnified as to totally
deprive them of their substantial right of appeal and leave them without
any remedy.
The Court therefore grants herein the relief denied by respondent
appellate court of mandamus to compel respondent city court to elevate
petitioners' appeal to the Court of Appeals as the proper court as being
within the context and spirit of Rule 50, section 3, providing for
certification to the proper court by the Court of Appeals of appealed
cases erroneously brought to it, 14 particularly where petitioners-accused
have shown prima facie (and without this Court prejudging the merits of
their appeal) that they have a valid cause for pursuing in good faith their
appeal (as against a manifestly dilatory or frivolous appeal) and to have
a higher court appreciate their evidence in support of their defense that
they were prosecuted and sentenced to imprisonment (for estafa) for
failure to pay a purely civil indebtedness (the attorney's fee owed by their
son to the complainant).
Here, petitioners-accused's counsel, misdirected their appeal to the
court of first instance, confronted with the thorny question (which has
confused many a practitioner) 15 of concurrent criminal jurisdiction of city
courts and municipal courts of provincial and sub-provincial capitals with
courts of first instance under sections 44 (f) and 87 (c) of the Judiciary
Act where the appeal from the municipal or city court's judgment should
be taken directly to the Court of Appeals as held in Esperat vs.
Avila 16 as distinguished however from judgments of ordinary municipal
courts in similar cases within the concurrent jurisdiction of the courts of
first instance where as held by this Court in People vs. Valencia 17 the
appeal should nevertheless be brought to the court of first ACCORDINGLY, the decision of the Court of Appeals dismissing the
instance which retains its appellate jurisdiction under section 45 of the petition is hereby set aside and in lieu thereof, judgment is hereby
Judiciary Act. rendered granting the petition for prohibition against respondent city
court which is hereby enjoined from executing its judgment of conviction
It certainly was within the inherent power of the court of first instance in against petitioners-accused and further commanding said city court to
exercise of its power to "control its process and orders so as to make elevate petitioners' appeal from its judgment to the Court of Appeals for
them conformable to law and justice" 18 to grant petitioners-accused's the latter's disposition on the merits. No costs.
timely plea to endorse their appeal to the Court of Appeals as the proper
court and within the context and spirit of Rule 50, section 3. In a mis- Makalintal, C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio,
directed appeal to the Court of Appeals of a case that pertains to the Fernandez, Muoz Palma and Aquino, JJ., concur.
court of first instance's jurisdiction, the said Rule expressly provides that
the Court of Appeals "shall not dismiss the appeal but shall certify the
case to the proper court" viz, the court of first instance in the given
example. There is no logical reason why in
all fairness and justice the court of first instance in a misdirected
appeal to it should not be likewise bound by the same rule and therefore
enjoined not to dismiss the appeal but to certify the case to the Court of
Appeals as the proper court. The paucity of the language of the Rule
and its failure to expressly provide for such cases of misdirected appeals
to the court of first instance (owing possibly to the fact that at the time of
the revision of the Rules of Court in 1963 section 87 (c) had
been newly amended under Republic Act 2613 approved on June 22,
1963 to enlarge the jurisdiction of city courts and municipal courts of
provincial capitals and provide for their concurrent jurisdiction with the
courts of first instance and direct appeal from their judgments in such
cases to the Court of Appeals) should not be a cause for unjustly
depriving petitioners of their substantial right of appeal.

This Court has in many cases involving the construction of statutes

always cautioned against "narrowly" interpreting a statute "as
to defeat the purpose of the legislator" " 19 and stressed that "it is of the
essence of judicial duty to construe statutes so as to avoid such a
deplorable result (of injustice or absurdity)" 20 and that therefore
"a literal interpretation is to be rejected if it would be unjust or lead to
absurd results". 21 In the construction of its own Rules of Court, this
Court is all the more so bound to liberally construe them to avoid
injustice, discrimination and unfairness and to supply the void that is
certainly within the spirit and purpose of the Rule to eliminate
repugnancy and inconsistency by holding as it does now that courts
of first instance are equally bound as the higher courts not to dismiss
misdirected appeals timely made but to certify them to the proper
appellate court.
 EN BANC
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in
question in this case.
The judicial administrator of this estate filed a scheme of partition.
Andre Brimo, one of the brothers of the deceased, opposed it. The
court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his
participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the approval
of the purchase made by the Pietro Lana of the deceased's business
and the deed of transfer of said business; and (5) the declaration that
the Turkish laws are impertinent to this cause, and the failure not to
postpone the approval of the scheme of partition and the delivery of
the deceased's business to Pietro Lanza until the receipt of the
depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in
question puts into effect the provisions of Joseph G. Brimo's will
which are not in accordance with the laws of his Turkish nationality,
for which reason they are void as being in violation or article 10 of
the Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the amount
of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be
the nature of the property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said testimentary
dispositions are not in accordance with the Turkish laws, inasmuch
as he did not present any evidence showing what the Turkish laws
are on the matter, and in the absence of evidence on such laws, they
are presumed to be the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws
are. He, himself, acknowledges it when he desires to be given an
opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of
the scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such
laws does not constitute an error. It is discretionary with the trial
court, and, taking into consideration that the oppositor was granted
ample opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this particular. There is,
therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary
dispositions in question which, not being contrary to our laws in
force, must be complied with and executed. l awphil.net
Therefore, the approval of the scheme of partition in this respect was
not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he is one
of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the
second clause of the will, which says:
Second. I like desire to state that although by law, I am a
Turkish citizen, this citizenship having been conferred upon
me by conquest and not by free choice, nor by nationality
and, on the other hand, having resided for a considerable
length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish
that the distribution of my property and everything in
connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise,
I annul and cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail to comply
with this request.
The institution of legatees in this will is conditional, and the condition
is that the instituted legatees must respect the testator's will to
distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.
And said condition is contrary to law because it expressly ignores the
testator's national law when, according to article 10 of the civil Code
above quoted, such national law of the testator is the one to govern
his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is
considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the
herein oppositor.
It results from all this that the second clause of the will regarding the
law which shall govern it, and to the condition imposed upon the
legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and
requests are perfectly valid and effective it not appearing that said
clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed
that the distribution of this estate be made in such a manner as to
include the herein appellant Andre Brimo as one of the legatees, and
the scheme of partition submitted by the judicial administrator is
approved in all other respects, without any pronouncement as to
costs.

If this condition as it is expressed were legal and valid, any legatee

So ordered.
who fails to comply with it, as the herein oppositor who, by his
attitude in these proceedings has not respected the will of the
testator, as expressed, is prevented from receiving his legacy. Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

The fact is, however, that the said condition is void, being contrary to
law, for article 792 of the civil Code provides the following:

Impossible conditions and those contrary to law or good

morals shall be considered as not imposed and shall not
prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide.
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding
Judge of the Regional Trial Court of Manila, Branch XXVI; HON.
LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and
ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a
foreign absolute divorce, only to be followed by a criminal infidelity
suit of the latter against the former, provides Us the opportunity to lay
down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple
lived together for some time in Malate, Manila where their only child,
Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between
the spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce
proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of
their marriage and that they had been living apart since April, 1982.
Petitioner, on the other hand, filed an action for legal separation,
support and separation of property before the Regional Trial Court of
Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court,
Federal Republic of Germany, promulgated a decree of divorce on
the ground of failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that under German
law said court was locally and internationally competent for the
divorce proceeding and that the dissolution of said marriage was
legally founded on and authorized by the applicable law of that
foreign jurisdiction.
4
On June 27, 1986, or more than five months after the issuance of the
divorce decree, private respondent filed two complaints for adultery
before the City Fiscal of Manila alleging that, while still married to
said respondent, petitioner "had an affair with a certain William Chia
as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr.,
after the corresponding investigation, recommended the dismissal of
the cases on the ground of insufficiency of evidence. However,
5
upon review, the respondent city fiscal approved a resolution, dated
January 8, 1986, directing the filing of two complaints for adultery
against the petitioner. The complaints were accordingly filed and
6
were eventually raffled to two branches of the Regional Trial Court of
Manila. The case entitled "People of the Philippines vs. Imelda Pilapil
and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while
the other case, "People of the Philippines vs. Imelda Pilapil and
James Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of
Justice asking that the aforesaid resolution of respondent fiscal be
set aside and the cases against her be dismissed. A similar petition
8
was filed by James Chua, her co-accused in Criminal Case No. 87-
2
52434. The Secretary of Justice, through the Chief State Prosecutor,
gave due course to both petitions and directed the respondent city
fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire records of both cases
to his office for review.
9
Petitioner thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. As a 10
consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge
merely reset the date of the arraignment in Criminal Case No. 87-
52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the Secretary
of Justice. A motion to quash was also filed in the same case on
11
the ground of lack of jurisdiction, which motion was denied by the
12
respondent judge in an order dated September 8, 1987. The same
order also directed the arraignment of both accused therein, that is,
petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as direct contempt,
she and her counsel were fined and the former was ordered detained
until she submitted herself for arraignment. Later, private
13
respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary restraining
order, seeking the annulment of the order of the lower court denying
her motion to quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de
officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree
under his national law prior to his filing the criminal complaint."
15
On October 21, 1987, this Court issued a temporary restraining order
enjoining the respondents from implementing the aforesaid order of
September 8, 1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice
Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints
against the petitioner. 16
We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code, the crime of adultery,
17
as well as four other crimes against chastity, cannot be prosecuted
except upon a sworn written complaint filed by the offended spouse.
It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal,
requirement. While in point of strict law the jurisdiction of the court
18
over the offense is vested in it by the Judiciary Law, the requirement
for a sworn written complaint is just as jurisdictional a mandate since
it is that complaint which starts the prosecutory proceeding and19
without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words, only
the offended spouse, and no other, is authorized by law to initiate the
action therefor.
Corollary to such exclusive grant of power to the offended spouse to
institute the action, it necessarily follows that such initiator must have
the status, capacity or legal representation to do so at the time of the
filing of the criminal action. This is a familiar and express rule in civil
actions; in fact, lack of legal capacity to sue, as a ground for a motion
to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining witness
therein. However, in the so-called "private crimes" or those which
cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party
who might prefer to suffer the outrage in silence rather than go
through the scandal of a public trial. Hence, as cogently argued by
20
petitioner, Article 344 of the Revised Penal Code thus presupposes
that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would
be absent where the supposed offended party had ceased to be the
spouse of the alleged offender at the time of the filing of the criminal
case. 21
In these cases, therefore, it is indispensable that the status and
capacity of the complainant to commence the action be definitely
established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would
be absurd if his capacity to bring the action would be determined by
his status beforeor subsequent to the commencement thereof, where
such capacity or status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the time of, the institution
of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal
capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the status of
a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be
categorized as possessed of such status. Stated differently and with
reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that
the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by
the former against the latter.
American jurisprudence, on cases involving statutes in that
jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer
has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive
right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of
the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of
defendant when the offense is said to have been
committed, he had ceased to be such when the
prosecution was begun; and appellant insists that his
status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense
is against the unoffending spouse, as well as the
state, in explaining the reason for this provision in
the statute; and we are of the opinion that the
unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in
this case and in our jurisdiction, considering our statutory law and
jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be
determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid
divorce in his country, the Federal Republic of Germany, is admitted.
Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned in view of
23
the nationality principle in our civil law on the matter of status of
persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., after a
24
divorce was granted by a United States court between Alice Van
Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was
conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of that
Nevada divorce in any of the States of the United
States. The decree is binding on private respondent
as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in
any State of the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines,
provided they are valid according to their national
law. ...
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner.
He would have no standing to sue in the case below
as petitioner's husband entitled to exercise control
over conjugal assets. ...25
Under the same considerations and rationale, private respondent,
being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought
this case before the decree of divorce for lack of knowledge, even if
true, is of no legal significance or consequence in this case. When
said respondent initiated the divorce proceeding, he obviously knew
that there would no longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed. Neither would there be
a danger of introducing spurious heirs into the family, which is said to
be one of the reasons for the particular formulation of our law on
adultery, since there would thenceforth be no spousal relationship
26
to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully
relied upon by private respondent. In applying Article 433 of the old
Penal Code, substantially the same as Article 333 of the Revised
Penal Code, which punished adultery "although the marriage be
afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married
woman to her marital vows, even though it should be made to appear
that she is entitled to have her marriage contract declared null and
void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of
nullity because such declaration that the marriage is void ab initio is
equivalent to stating that it never existed. There being no marriage
from the beginning, any complaint for adultery filed after said
declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within the
purview of the decision in said case is the situation where the
criminal action for adultery was filed beforethe termination of the
marriage by a judicial declaration of its nullity ab initio. The same rule
and requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, must suffer the same fate of
27
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a complaint
for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue
determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to
quash is SET ASIDE and another one entered DISMISSING the
complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987
is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider
the German absolute divorce as valid also in the Philippines, the fact
is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others.
A contrary ruling would be less than fair for a man, who is free to
have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme
Court considered the absolute divorce between the American
husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet
of the Supreme Court regarding the validity of such a divorce if one
of the parties, say an American, is married to a Filipino wife, for then
two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private
International Law and precisely because of the National law doctrine,
he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved.
This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely
the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or
injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband
would be injurious or prejudicial to the Filipino wife whose marriage
would be still valid under her national law, it would seem that under
our law existing before the new Family Code (which took effect on
August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
cannot apply despite the fact that the husband was an American can
with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
 would be still valid under her national law, it would seem that under
our law existing before the new Family Code (which took effect on
Separate Opinions August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.
PARAS, J., concurring:
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
It is my considered opinion that regardless of whether We consider cannot apply despite the fact that the husband was an American can
the German absolute divorce as valid also in the Philippines, the fact with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others.
A contrary ruling would be less than fair for a man, who is free to
have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme
Court considered the absolute divorce between the American
husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet
of the Supreme Court regarding the validity of such a divorce if one
of the parties, say an American, is married to a Filipino wife, for then
two (2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private

International Law and precisely because of the National law doctrine,
he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved.
This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely
the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or
injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband
would be injurious or prejudicial to the Filipino wife whose marriage
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding
Judge of the Regional Trial Court of Manila, Branch XXVI; HON.
LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and
ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a
foreign absolute divorce, only to be followed by a criminal infidelity
suit of the latter against the former, provides Us the opportunity to lay
down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple
lived together for some time in Malate, Manila where their only child,
Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between
the spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce
proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of
their marriage and that they had been living apart since April, 1982.
Petitioner, on the other hand, filed an action for legal separation,
support and separation of property before the Regional Trial Court of
Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court,
Federal Republic of Germany, promulgated a decree of divorce on
the ground of failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that under German
law said court was locally and internationally competent for the
divorce proceeding and that the dissolution of said marriage was
legally founded on and authorized by the applicable law of that
foreign jurisdiction.
4
On June 27, 1986, or more than five months after the issuance of the
divorce decree, private respondent filed two complaints for adultery
before the City Fiscal of Manila alleging that, while still married to
said respondent, petitioner "had an affair with a certain William Chia
as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr.,
after the corresponding investigation, recommended the dismissal of
the cases on the ground of insufficiency of evidence. However,
5
upon review, the respondent city fiscal approved a resolution, dated
January 8, 1986, directing the filing of two complaints for adultery
against the petitioner. The complaints were accordingly filed and
6
were eventually raffled to two branches of the Regional Trial Court of
Manila. The case entitled "People of the Philippines vs. Imelda Pilapil
and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while
the other case, "People of the Philippines vs. Imelda Pilapil and
James Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of
Justice asking that the aforesaid resolution of respondent fiscal be
set aside and the cases against her be dismissed. A similar petition
8
was filed by James Chua, her co-accused in Criminal Case No. 87-
2
52434. The Secretary of Justice, through the Chief State Prosecutor,
gave due course to both petitions and directed the respondent city
fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire records of both cases
to his office for review.
9
Petitioner thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. As a 10
consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge
merely reset the date of the arraignment in Criminal Case No. 87-
52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the Secretary
of Justice. A motion to quash was also filed in the same case on
11
the ground of lack of jurisdiction, which motion was denied by the
12
respondent judge in an order dated September 8, 1987. The same
order also directed the arraignment of both accused therein, that is,
petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as direct contempt,
she and her counsel were fined and the former was ordered detained
until she submitted herself for arraignment. Later, private
13
respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary restraining
order, seeking the annulment of the order of the lower court denying
her motion to quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de
officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree
under his national law prior to his filing the criminal complaint."
15
On October 21, 1987, this Court issued a temporary restraining order
enjoining the respondents from implementing the aforesaid order of
September 8, 1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice
Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints
against the petitioner. 16
We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code, the crime of adultery,
17
as well as four other crimes against chastity, cannot be prosecuted
except upon a sworn written complaint filed by the offended spouse.
It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal,
requirement. While in point of strict law the jurisdiction of the court
18
over the offense is vested in it by the Judiciary Law, the requirement
for a sworn written complaint is just as jurisdictional a mandate since
it is that complaint which starts the prosecutory proceeding and19
without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words, only
the offended spouse, and no other, is authorized by law to initiate the
action therefor.
Corollary to such exclusive grant of power to the offended spouse to
institute the action, it necessarily follows that such initiator must have
the status, capacity or legal representation to do so at the time of the
filing of the criminal action. This is a familiar and express rule in civil
actions; in fact, lack of legal capacity to sue, as a ground for a motion
to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining witness
therein. However, in the so-called "private crimes" or those which
cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party
who might prefer to suffer the outrage in silence rather than go
through the scandal of a public trial. Hence, as cogently argued by
20
petitioner, Article 344 of the Revised Penal Code thus presupposes
that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would
be absent where the supposed offended party had ceased to be the
spouse of the alleged offender at the time of the filing of the criminal
case. 21
In these cases, therefore, it is indispensable that the status and
capacity of the complainant to commence the action be definitely
established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would
be absurd if his capacity to bring the action would be determined by
his status beforeor subsequent to the commencement thereof, where
such capacity or status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the time of, the institution
of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal
capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the status of
a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be
categorized as possessed of such status. Stated differently and with
reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that
the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by
the former against the latter.
American jurisprudence, on cases involving statutes in that
jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer
has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive
right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of
the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of
defendant when the offense is said to have been
committed, he had ceased to be such when the
prosecution was begun; and appellant insists that his
status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense
is against the unoffending spouse, as well as the
state, in explaining the reason for this provision in
the statute; and we are of the opinion that the
unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in
this case and in our jurisdiction, considering our statutory law and
jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be
determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid
divorce in his country, the Federal Republic of Germany, is admitted.
Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned in view of
23
the nationality principle in our civil law on the matter of status of
persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., after a
24
divorce was granted by a United States court between Alice Van
Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was
conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of that
Nevada divorce in any of the States of the United
States. The decree is binding on private respondent
as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in
any State of the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines,
provided they are valid according to their national
law. ...
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner.
He would have no standing to sue in the case below
as petitioner's husband entitled to exercise control
over conjugal assets. ...25
Under the same considerations and rationale, private respondent,
being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought
this case before the decree of divorce for lack of knowledge, even if
true, is of no legal significance or consequence in this case. When
said respondent initiated the divorce proceeding, he obviously knew
that there would no longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed. Neither would there be
a danger of introducing spurious heirs into the family, which is said to
be one of the reasons for the particular formulation of our law on
adultery, since there would thenceforth be no spousal relationship
26
to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully
relied upon by private respondent. In applying Article 433 of the old
Penal Code, substantially the same as Article 333 of the Revised
Penal Code, which punished adultery "although the marriage be
afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married
woman to her marital vows, even though it should be made to appear
that she is entitled to have her marriage contract declared null and
void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of
nullity because such declaration that the marriage is void ab initio is
equivalent to stating that it never existed. There being no marriage
from the beginning, any complaint for adultery filed after said
declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within the
purview of the decision in said case is the situation where the
criminal action for adultery was filed beforethe termination of the
marriage by a judicial declaration of its nullity ab initio. The same rule
and requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, must suffer the same fate of
27
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a complaint
for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue
determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to
quash is SET ASIDE and another one entered DISMISSING the
complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987
is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider
the German absolute divorce as valid also in the Philippines, the fact
is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others.
A contrary ruling would be less than fair for a man, who is free to
have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme
Court considered the absolute divorce between the American
husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet
of the Supreme Court regarding the validity of such a divorce if one
of the parties, say an American, is married to a Filipino wife, for then
two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private
International Law and precisely because of the National law doctrine,
he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved.
This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely
the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or
injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband
would be injurious or prejudicial to the Filipino wife whose marriage
would be still valid under her national law, it would seem that under
our law existing before the new Family Code (which took effect on
August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
cannot apply despite the fact that the husband was an American can
with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
 would be still valid under her national law, it would seem that under
our law existing before the new Family Code (which took effect on
Separate Opinions August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.
PARAS, J., concurring:
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
It is my considered opinion that regardless of whether We consider cannot apply despite the fact that the husband was an American can
the German absolute divorce as valid also in the Philippines, the fact with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others.
A contrary ruling would be less than fair for a man, who is free to
have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme
Court considered the absolute divorce between the American
husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet
of the Supreme Court regarding the validity of such a divorce if one
of the parties, say an American, is married to a Filipino wife, for then
two (2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private

International Law and precisely because of the National law doctrine,
he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved.
This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely
the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or
injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband
would be injurious or prejudicial to the Filipino wife whose marriage

[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the
foreigner. However, the divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgments; hence, like any other facts,
both the divorce decree and the national law of the alien must be alleged and
proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to nullify the January 7, 1999 Decision[1] and the March 24, 1999
Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026AF. The assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia
and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City
as dissolved and both parties can now remarry under existing and applicable
laws to any and/or both parties.[3]
The assailed Order denied reconsideration of the above-quoted
Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987. [4] They lived
together as husband and wife in Australia. On May 18, 1989, [5] a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian
family court.
On June 26, 1992, respondent became an Australian citizen, as shown
by a Certificate of Australian Citizenship issued by the Australian
government.[6] Petitioner -- a Filipina -- and respondent were married on
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
City.[7] In their application for a marriage license, respondent was declared
as single and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived separately
without prior judicial dissolution of their marriage. While the two were still
in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.[9]
On March 3, 1998, petitioner filed a Complaint for Declaration of
Nullity of Marriage[10] in the court a quo, on the ground of bigamy --
respondent allegedly had a prior subsisting marriage at the time he married
her on January 12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
revealed to petitioner his prior marriage and its subsequent dissolution.[11] He
contended that his first marriage to an Australian citizen had been validly
dissolved by a divorce decree obtained in Australia in 1989;[12] thus, he was
legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and
while the suit for the declaration of nullity was pending -- respondent was
able to secure a divorce decree from a family court in Sydney, Australia
because the marriage ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be dismissed on
the ground that it stated no cause of action.[14] The Office of the Solicitor
General agreed with respondent.[15] The court marked and admitted the
documentary evidence of both parties.[16] After they submitted their
respective memoranda, the case was submitted for resolution. [17]
Thereafter, the trial court rendered the assailed Decision and Order.
 Ruling of the Trial Court The trial court patently and grievously erred in disregarding Arts. 11, 13,
21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this
case.
The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines. It 5
deemed the marriage ended, but not on the basis of any defect in an essential
element of the marriage; that is, respondents alleged lack of legal capacity to
The trial court gravely erred in pronouncing that the divorce decree obtained
remarry. Rather, it based its Decision on the divorce decree obtained by
by the respondent in Australia ipso facto capacitated the parties to remarry,
respondent. The Australian divorce had ended the marriage; thus, there was
without first securing a recognition of the judgment granting the divorce
no more marital union to nullify or annul.
decree before our courts.[19]
Hence, this Petition.[18]
The Petition raises five issues, but for purposes of this Decision, we
shall concentrate on two pivotal ones: (1) whether the divorce between
Issues respondent and Editha Samson was proven, and (2) whether respondent was
proven to be legally capacitated to marry petitioner. Because of our ruling on
these two, there is no more necessity to take up the rest.
Petitioner submits the following issues for our consideration:
1
The Courts Ruling
The trial court gravely erred in finding that the divorce decree obtained in
Australia by the respondent ipso facto terminated his first marriage to The Petition is partly meritorious.
Editha Samson thereby capacitating him to contract a second marriage with
the petitioner.

2 First Issue:
Proving the Divorce Between Respondent and Editha Samson
The failure of the respondent, who is now a naturalized Australian, to
present a certificate of legal capacity to marry constitutes absence of a Petitioner assails the trial courts recognition of the divorce between
substantial requisite voiding the petitioners marriage to the respondent respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee,[20] petitioner argues that the divorce decree, like any other foreign
3 judgment, may be given recognition in this jurisdiction only upon proof of
the existence of (1) the foreign law allowing absolute divorce and (2) the
The trial court seriously erred in the application of Art. 26 of the Family alleged divorce decree itself. She adds that respondent miserably failed to
Code in this case. establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the
4 Family Code, marriages solemnized abroad are governed by the law of the
place where they were celebrated (the lex loci celebrationis). In effect, the
Code requires the presentation of the foreign law to show the conformity of
the marriage in question to the legal requirements of the place where the
marriage was performed.
At the outset, we lay the following basic legal principles as the take-off
points for our discussion. Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it.[21] A marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad, because of
Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a
Filipino and a foreigner, Article 26[25] of the Family Code allows the former
to contract a subsequent marriage in case the divorce is validly obtained
abroad by the alien spouse capacitating him or her to remarry. [26] A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws. [27]
A comparison between marriage and divorce, as far as pleading and
proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens
may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. [28] Therefore, before
a foreign divorce decree can be recognized by our courts, the party pleading
it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it.[29] Presentation solely of the divorce decree is
insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in
evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage,
the partition and distribution of the properties of the spouses, and the
delivery of the childrens presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same
shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree
is a public document -- a written official act of an Australian family
court. Therefore, it requires no further proof of its authenticity and due
execution.
Respondent is getting ahead of himself. Before a foreign judgment is
given presumptive evidentiary value, the document must first be presented
and admitted in evidence.[30] A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment is the judgment
itself.[31] The decree purports to be a written act or record of an act of an
official body or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country
by either (1) an official publication or (2) a copy thereof attested [33] by the
officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the
proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to
be an authentic one issued by an Australian family court.[35] However,
appearance is not sufficient; compliance with the aforementioned rules on
evidence must be demonstrated.
 Fortunately for respondents cause, when the divorce decree of May 18,
1989 was submitted in evidence, counsel for petitioner objected, not to its
admissibility, but only to the fact that it had not been registered in the Local
Civil Registry of Cabanatuan City.[36] The trial court ruled that it was
admissible, subject to petitioners qualification.[37] Hence, it was admitted in
evidence and accorded weight by the judge. Indeed, petitioners failure to
object properly rendered the divorce decree admissible as a written act of the
Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code
is not necessary; respondent was no longer bound by Philippine personal laws
after he acquired Australian citizenship in 1992.[39]Naturalization is the legal
act of adopting an alien and clothing him with the political and civil rights
belonging to a citizen.[40] Naturalized citizens, freed from the protective cloak
of their former states, don the attires of their adoptive countries. By becoming
an Australian, respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law
falls upon petitioner, because she is the party challenging the validity of a
foreign judgment. He contends that petitioner was satisfied with the original
of the divorce decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine
courts; thus, judges may take judicial notice of foreign laws in the exercise of
sound discretion.
We are not persuaded. The burden of proof lies with the party who
alleges the existence of a fact or thing necessary in the prosecution or defense
of an action.[41] In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied by the answer;
and defendants have the burden of proving the material allegations in their
answer when they introduce new matters.[42] Since the divorce was a defense
raised by respondent, the burden of proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial
notice of foreign laws.[43] Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges are
supposed to know by reason of their judicial function. [44] The power of
judicial notice must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce,
respondent was legally incapacitated to marry her in 1994. Hence, she
concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was
validly admitted in evidence, adequately established his legal capacity to
marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic ones
are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a
mensa et thoro. The first kind terminates the marriage, while the second
suspends it and leaves the bond in full force.[45] There is no showing in the
case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a
conditional or provisional judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute divorce may follow after
the lapse of the prescribed period during which no reconciliation is
effected.[46]
Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some other
jurisdictions, remarriage may be limited by statute; thus, the guilty party in a
divorce which was granted on the ground of adultery may be prohibited from
marrying again. The court may allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce decree contains a restriction
that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the
offence of bigamy.[48]
 This quotation bolsters our contention that the divorce obtained by
respondent may have been restricted. It did not absolutely establish his legal
capacity to remarry according to his national law. Hence, we find no basis for
the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondents capacity to remarry despite the
paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a
disputable presumption or presumptive evidence as to his civil status based
on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no
proof has been presented on the legal effects of the divorce decree obtained
under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article
21 of the Family Code was not submitted together with the application for a
marriage license. According to her, its absence is proof that respondent did
not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie evidence of legal
capacity to marry on the part of the alien applicant for a marriage license. [50]
As it is, however, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner. A review of the records before
this Court shows that only the following exhibits were presented before the
lower court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon,
Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan
City Certification that no information of annulment between Rederick A.
Recio and Editha D. Samson was in its records;[54] and (e) Exhibit E
Certificate of Australian Citizenship of Rederick A. Recio;[55] (2) for
respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law
Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia;[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick
A. Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and Grace J.
Garcia Recio since October 22, 1995.[60]
Based on the above records, we cannot conclude that respondent, who
was then a naturalized Australian citizen, was legally capacitated to marry
petitioner on January 12, 1994. We agree with petitioners contention that the
court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law governing his status;
or at the very least, to prove his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may turn out
that under Australian law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in that, then
the court a quo may declare a nullity of the parties marriage on the ground of
bigamy, there being already in evidence two existing marriage certificates,
which were both obtained in the Philippines, one in Malabon, Metro Manila
dated March 1, 1987 and the other, in Cabanatuan City dated January 12,
1994.
WHEREFORE, in the interest of orderly procedure and substantial
justice, we REMAND the case to the court a quo for the purpose of receiving
evidence which conclusively show respondents legal capacity to marry
petitioner; and failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.