FAMILY (WEEK 5) | CHAVEZ
For sixth week
a. Discuss Article 45 of the Family Code.
Art. 45. A marriage may be annulled for any
of the following causes, existing at the time of
the marriage:
(1) That the party in whose behalf it is
sought to have the marriage annulled
was eighteen years of age or over but
below twenty-one, and the marriage
was solemnized without the consent of
the parents, guardian or person
having substitute parental authority
over the party, in that order, unless
after attaining the age of twenty-one,
such party freely cohabited with the
other and both lived together as
husband and wife;
(2) That either party was of unsound
mind, unless such party after coming
to reason, freely cohabited with the
other as husband and wife;
(3) 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 husband
and wife;
(4) That the consent of either party was
obtained by force, intimidation or
undue influence, unless the same
having disappeared or ceased, such
party thereafter freely cohabited with
the other as husband and wife;
(5) That either party was physically
incapable of consummating the
marriage with the other, and such
incapacity continues and appears to
be incurable; or
(6) That either party was afflicted with a
sexually transmissible disease found
to be serious and appears to be
incurable.
b. When must the cause for annulment
of marriage exist?
- The causes for annulment must be
existing at the time of the
celebration of the marriage. If
they occur after the celebration of
the marriage, they will not constitute
as causes or grounds for annulment.
Thus, if at the time of the
celebration of the marriage of A and
B there was nothing wrong with the
mental health of B, but later after
the marriage, B became mentally
sick, the marriage cannot be
annulled on ground of unsoundness
of B’s mind.
- Succinctly stated, the grounds for
annulment are:
(1) Lack of parental consent
(2) Unsoundness of mind
(3) Consent obtained through fraud
(4) Consent obtained by force,
intimidation or undue influence
(5) Physical incapability of
consummating the marriage,
and
(6) Affliction with a sexually-
transmissible disease
c. Distinguish between a void and a
voidable marriage as to existence of
the marriage?
- A void marriage did not exist ab
initio or from the very beginning.
- A voidable marriage is a valid
marriage until annulled or declared
void.
- Strictly speaking, an action for
annulment refers to a voidable
marriage, while an action for
declaration of nullity of refers to
void marriage.
d. What is the test of unsoundness of
mind?
- The theory of annulment on the
ground of insanity is not that the
sane spouse has made a bad bargain
in getting an insane partner, but that
the latter has manifested a consent
that is unreal for lack of
intelligence.
- The test is whether the party was
capable of understanding the
nature and consequences of the
1

marriage at the time of the
celebration.
- It is not whether the party was
possessed of sufficient mentality to
measure up to the responsibility
incurred by bringing offsprings into
the world but whether there is a
realization of what is being done
and to consent thereto.
- Insanity which occurred after the
celebration of the marriage cannot
constitute a cause of nullity. Mere
mental weakness of a party if it does
not deprive the party of capacity to
understand and appreciate the
consequences of the step he is
taking does not affect the validity of
the marriage.
e. Explain the presumption of the law in
favor of soundness of mind.
- The general presumption of the
law is in favor of the soundness of
mind.
- The one who alleges unsoundness of
mind has the burden of proof. And
once general insanity has been
existing, it is presumed to continue
and if a recovery or lucid interval is
alleged to have occurred, the burden
of proving that allegation is on the
person making it.
- Much weight is given to the
testimony of a physician in daily
attendance to a party about the
latter’s sanity or insanity. Even the
opinion of an ordinary witness may
be received in evidence.
f. When is force, intimidation, or undue
influence considered as a ground for
annulment of marriage?
- When the consent of a contracting
party is obtained by force,
intimidation or undue influence, the
marriage is voidable. It can be
ratified by free cohabitation.
- There is force and violence when
the physical power is serious or
irresistible (Art. 1335) to
FAMILY (WEEK 5) | CHAVEZ
constitute a ground for
annulment.
- There is intimidation when one of
the contracting parties is
compelled by a reasonable and
well-grounded belief of an
imminent and grave evil upon his
person or property, or upon the
person or property of his spouse,
descendants or ascendants, to give
his consent.
- However, a threat to enforce one’s
claim through competent authority,
if the claim is just or legal, does not
vitiate consent. Thus, it has been
held that a woman’s threat to file
with the Supreme Court a complaint
against a bar candidate if he does
not marry her with whom he had
sexual intimacies, does not vitiate
his consent to the marriage.
- To be a ground for annulment of
marriage, the threat or intimidation
must be of such a nature as to
prevent the party upon whom it is
employed from acting as a free
agent, his will being coerced by fear
or compulsion.
g. What are the kinds of impotency?
What kind of impotency is a ground
for annulment of marriage?
- Generally, there are two kinds of
impotency—
a) Absolute or Incurable
Impotency—This is the kind of
impotency which is continuous
and incurable and there is no
known relief and it principally
originates in some malformation
or defect of the genital organs.
b) Temporary or Curable
Impotency—This is the kind of
impotency which is not
permanent because it is curable.
- If the impotency is absolute or
incurable it is a ground for
annulment of marriage. If it is
2

temporary and it appears to be
curable, it is not a ground for
annulment.
h. Discuss Jimenez v. Canizares, G.R.
No. L-12790, 31 August 1960.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12790             August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-
appellant.
Acting Solicitor General Guillermo E. Torres
and Solicitor Pacifico P. de Castro for
appellant.
Climaco, Ascarraga and Silang for 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 Cañizares
contracted on 3 August 1950 before a judge of
the municipal court of Zamboanga City, upon
the ground that the office of her genitals or
vagina was to 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 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, to intervene for the State to see
that the evidence for the plaintiff is not a frame-
FAMILY (WEEK 5) | CHAVEZ
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
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 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.
3

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 permanence.
The security and stability of the state are largely
dependent upon it. It is the interest 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 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, becase 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 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.1 "Impotency being
an abnormal condition should not be presumed.
The presumption is in favor of potency." 2 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.
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.
Paras, C.J., Bengzon, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L., Barrera,
Gutierrez David, and Dizon, JJ. concur.
FAMILY (WEEK 5) | CHAVEZ
i. In which instances will free
cohabitation result in ratification?
Discuss each.
- No ratification by free cohabitation
in cases of absolute impotency
precisely because there could be no
cohabitation as consummation of the
marriage is not possible.
- No ratification by free cohabitation
in STD.
- The circumstances enumerated in
paragraphs 1, 2, 3, and 4 of
Article 45 can be ratified by free
cohabitation. Paragraphs 5 and 6 is
not susceptible to ratification by free
cohabitation.
- The law provides no ratification by
free cohabitation for obvious reason
—the disease being serious and
incurable must be contagious.
Cohabitation is not expected not
encouraged by the law for
preservation of the health of the
other spouse.
j. Discuss Article 46 of the Family Code.
Art. 46. Any of the following
circumstances shall constitute fraud
referred to in Number 3 of the preceding
Article:
(1) Non-disclosure of a previous
conviction by final judgement of the
other party of a crime involving
moral turpitude;
(2) Concealment by the wife of the fact
that at the time of the marriage, she
was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible
disease, regardless of its nature,
existing at the time of the marriage;
or
(4) Concealment of drug addiction,
habitual alcoholism, homosexuality or
lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to
character, health, rank, fortune or
4

chastity shall constitute such fraud as will
give/grounds for action for the annulment
of marriage.
k. When is a crime considered involving
moral turpitude?
- A crime involves moral turpitude
when it is not only transgressive of
the law but also of one’s moral
duty.
- The term moral turpitude—implies
inherent baseness, vileness of
principle, shameful, wickedness or
depravity. It has reference largely to
moral character and state of mind
and is an essential element of an
infamous crime. (People vs.
Formaran)
l. Discuss Dela Torre v. Comelec, GR.
No. 121592, 05 July 1996.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 121592 July 5, 1996
ROLANDO P. DELA TORRE, petitioner,
vs.
COMMISSION ON ELECTIONS and
MARCIAL VILLANUEVA, respondents.
RESOLUTION
 
FRANCISCO, J.:p
Petitioner Rolando P. Dela Torre via the instant
petition for certiorari seeks the nullification of
two resolutions issued by the Commission on
Elections (COMELEC) allegedly with grave
abuse of discretion amounting to lack of
FAMILY (WEEK 5) | CHAVEZ
jurisdiction in SPA No. 95-047, a case for
disqualification filed against petitioner before
the COMELEC.1
The first assailed resolution dated May 6, 1995
declared the petitioner disqualified from running
for the position of Mayor of Cavinti, Laguna in
the last May 8, 1995 elections, citing as the
ground therefor, Section 40(a) of Republic Act
No. 7160 (the Local Government Code of
1991)2 which provides as follows:
Sec. 40. Disqualifications. The following
persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more of
imprisonment within two (2) years after serving
sentence;
(b) xxx xxx xxx.
In disqualifying the petitioner, the COMELEC
held that:
Documentary evidence . . . established that
herein respondent (petitioner in this case) was
found guilty by the Municipal Trial Court, . . . in
Criminal Case No. 14723 for violation of P.D.
1612, (otherwise known as the Anti-fencing
Law) in a Decision dated June 1, 1990.
Respondent appealed the said conviction with
the Regional Trial Court . . . , which however,
affirmed respondent's conviction in a Decision
dated November 14, 1990. Respondent's
conviction became final on January 18, 1991.
xxx xxx xxx
. . . , there exists legal grounds to disqualify
respondent as candidate for Mayor of Cavinti,
Laguna this coming elections. Although there is
"dearth of jurisprudence involving violation of
the Anti-Fencing Law of 1979 or P.D. 1612" . . .
, the nature of the offense under P.D. 1612 with
which respondent was convicted certainly
involves moral turpitude . . . .3
5

The second assailed resolution, dated August 28,
1995, denied petitioner's motion for
reconsideration. In said motion, petitioner
claimed that Section 40 (a) of the Local
Government Code does not apply to his case
inasmuch as the probation granted him by the
MTC on December 21, 1994 which suspended
the execution of the judgment of conviction and
all other legal consequences flowing therefrom,
rendered inapplicable Section 40 (a) as well. 4
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves
moral turpitude.
2. Whether or not a grant of probation affects
Section 40 (a)'s applicability.
Particularly involved in the first issue is the first
of two instances contemplated in Section 40 (a)
when prior conviction of a crime becomes a
ground for disqualification — i.e., "when the
conviction by final judgment is for an offense
involving moral turpitude." And in this
connection, the Court has consistently adopted
the definition in Black's Law Dictionary of
"moral turpitude" as:
. . . an act of baseness, vileness, or depravity in
the private duties which a man owes his fellow
men, or to society in general, contrary to the
accepted and customary rule of right and duty
between man and woman or conduct contrary to
justice, honesty, modesty, or good morals.5
Not every criminal act, however, involves moral
turpitude. It is for this reason that "as to what
crime involves moral turpitude, is for the
Supreme Court to determine".6 In resolving the
foregoing question, the Court is guided by one
of the general rules that crimes mala in se
involve moral turpitude, while crimes mala
prohibita do not7, the rationale of which was set
forth in "Zari v. Flores,"8 to wit:
It (moral turpitude) implies something immoral
in itself, regardless of the fact that it is
punishable by law or not. It must not be merely
mala prohibita, but the act itself must be
FAMILY (WEEK 5) | CHAVEZ
inherently immoral. The doing of the act itself,
and not its prohibition by statute fixes the moral
turpitude. Moral turpitude does not, however,
include such acts as are not of themselves
immoral but whose illegality lies in their being
positively prohibited.9
This guidelines nonetheless proved short of
providing a clear-cut solution, for in
"International Rice Research Institute v. NLRC,
10 the Court admitted that it cannot always be
ascertained whether moral turpitude does or
does not exist by merely classifying a crime as
malum in se or as malum prohibitum. There are
crimes which are mala in se and yet but rarely
involve moral turpitude and there are crimes
which involve moral turpitude and are mala
prohibita only. In the final analysis, whether or
not a crime involves moral turpitude is
ultimately a question of fact and frequently
depends on all the circumstances surrounding
the violation of the statue.11
The Court in this case shall nonetheless dispense
with a review of the facts and circumstances
surrounding the commission of the crime,
inasmuch as petitioner after all does not assail
his conviction. Petitioner has in effect admitted
all the elements of the crime of fencing. At any
rate, the determination of whether or not fencing
involves moral turpitude can likewise be
achieved by analyzing the elements alone.
Fencing is defined in Section 2 of P.D. 1612
(Anti-Fencing Law) as:
a. . . . the act of any person who, with intent to
gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any
manner deal in any article, item, object or
anything of value which he knows, or should be
known to him, to have been derived from the
proceeds of the crime of robbery or theft.12
From the foregoing definition may be gleaned
the elements of the crime of fencing which are:
1. A crime of robbery or theft has been
committed;
6

2. The accused who is not a principal or
accomplice in the crime of robbery or
theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in
any article, item, object or anything of
value, which have been derived from the
proceeds of the said crime;
3. The accused knows or should have
known that the said article, item, object
or anything of value has been derived
from the proceeds of the crime of
robbery or theft; and [Emphasis
supplied.]
4. There is, on the part of the accused,
intent to gain for himself or for
another.13
Moral turpitude is deducible from the third
element. Actual knowledge by the "fence" of the
fact that property received is stolen displays the
same degree of malicious deprivation of one's
rightful property as that which animated the
robbery or theft which, by their very nature, are
crimes of moral turpitude. And although the
participation of each felon in the unlawful taking
differs in point in time and in degree, both the
"fence" and the actual perpetrator/s of the
robbery or theft invaded one's peaceful
dominion for gain — thus deliberately reneging
in the process "private duties" they owe their
"fellowmen" or "society" in a manner "contrary
to . . . accepted and customary rule of right and
duty . . . , justice, honesty . . . or good morals."
The duty not to appropriate, or to return,
anything acquired either by mistake or with
malice is so basic it finds expression in some
key provisions of the Civil Code on "Human
Relations" and "Solutio Indebiti", to wit:
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
FAMILY (WEEK 5) | CHAVEZ
Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Art. 22. Everyone person who through an act of
performance by another, or any other means,
acquires or comes into possession of something
at the expense of the latter without just or legal
ground, shall return the same to him.
Art. 2154. If something is received when there is
no right to demand it, and it was unduly
delivered through mistake, the obligation to
return it arises.
The same underlying reason holds even if the
"fence" did not have actual knowledge, but
merely "should have known" the origin of the
property received. In this regard, the Court held:
When knowledge of the existence of a particular
fact is an element of the offense, such
knowledge is established if a person is aware of
the high probability of its existence unless he
actually believes that it does not exist. On the
other hand, the words "should know" denote the
fact that a person of reasonable prudence and
intelligence would ascertain the fact in the
performance of his duty to another or would
govern his conduct upon assumption that such
fact exists.14 [Emphasis supplied.]
Verily, circumstances normally exist to
forewarn, for instance, a reasonably vigilant
buyer that the object of the sale may have been
derived from the proceeds of robbery or theft.
Such circumstances include the time and place
of the sale, both of which may not be in accord
with the usual practices of commerce. The
nature and condition of the goods sold, and the
fact that the seller is not regularly engaged in the
business of selling goods may likewise suggest
the illegality of their source, and therefor should
caution the buyer. This justifies the presumption
found in Section 5 of P.D. No. 1612 that "mere
7

possession of any goods, . . . , object or anything
of value which has been the subject of robbery
or thievery shall be prima facie evidence of
fencing" — a presumption that is, according to
the Court, "reasonable for no other natural or
logical inference can arise from the established
fact of . . . possession of the proceeds of the
crime of robbery or theft."15 All told, the
COMELEC did not err in disqualifying the
petitioner on the ground that the offense of
fencing of which he had been previously
convicted by final judgment was one involving
moral turpitude.
Anent the second issue where petitioner
contends that his probation had the effect of
suspending the applicability of Section 40 (a) of
the Local Government Code, suffice it to say
that the legal effect of probation is only to
suspend the execution of the sentence.16
Petitioner's conviction of fencing which we have
heretofore declared as a crime of moral turpitude
and thus falling squarely under the
disqualification found in Section 40 (a), subsists
and remains totally unaffected notwithstanding
the grant of probation. In fact, a judgment of
conviction in a criminal case ipso facto attains
finality when the accused applies for probation,
although it is not executory pending resolution
of the application for probation.17 Clearly then,
petitioner's theory has no merit.
ACCORDINGLY, the instant petition for
certiorari is hereby DISMISSED and the
assailed resolutions of the COMELEC dated
May 6, 1995 and August 28, 1995 are
AFFIRMED in toto.
SO ORDERED.
m. When is concealment of pregnancy
considered as constituting fraud?
- Concealment by the wife of the fact
that she already had a child before
by another man is not a ground for
annulment. What must have been
concealed is pregnancy at the time
of the marriage by another man.
FAMILY (WEEK 5) | CHAVEZ
- A husband has the right to require
that his wife shall not bear to his bed
aliens to his and lineage.
- There is no graver fraud than
this, attended as it is with serious
insults on the person and dignity
of the husband. If the fraud be
successful, the child who is a
complete stranger to the husband
will carry his surname and more,
will be unjustifiably entitled to
support (to the full extent set forth
in Article 194) on top of
successional rights to the
prejudice of the real children and
other relatives of the husband.
- The remedy of the husband is to file
a case of adultery and/or legal
separation, not annulment.
n. Discuss Aquino v. Delizo, G.R. No. L-
15853, 27 July 1960.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15853             July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, 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,
8

1954, concealed from the latter that 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 attorney's 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.
Defendant 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 court — noting 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 the
plaintiff does not constitute such fraud sa 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.
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
FAMILY (WEEK 5) | CHAVEZ
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 brother-in-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 plaintiff's
marriage to defendant;
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;
3. Affidavit of Albert Powell (Annex
"C") stating that he knew Cesar Aquino
and defendant lived together as husband
and wife before December 27, 1954, the
date of plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first
born, Catherine Bess Aquino showing
her date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of
Carolle Ann Aquino, the second child of
defendant with Cesar Aquino, her
brother-in-law;
9

6. Birth Certificate (Annex "E") of Chris
Charibel Aquino, the third child of
Cesar Aquino and defendant; and
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) cited in the decision
sought to be reviewed, which was also an action
for the annulment of 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
FAMILY (WEEK 5) | CHAVEZ
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.
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 of 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 circumstance, we
think that justice would be better served if a new
trial were ordered.
10

Wherefore, the decision complained of is set
aside and the case remanded to the court a quo
for new trial. Without costs.
o. When will concealment of a sexually
transmissible disease constitute
fraud?
- The disease must be sexually
transmissible and existing at the
time of the marriage, such as
AIDS, gonorrhea and syphilis. If
the woman knew of the disease at
the time of the marriage,
annulment of the marriage will
not prosper for then, there is no
concealment.
p. When will concealment of drug
addiction, habitual alcoholism,
homosexuality or lesbianism
constitute fraud?
- The conditions or ailments must
exist at the time of the marriage
and anyone is a sufficient ground
for annulment. If they are
acquired after the marriage, they
cannot constitute grounds for
annulment.
q. Discuss Almelor v. RTC of Las Pinas
City, GR. No. 179620, 26 August 2008.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 179620             August 26, 2008
MANUEL G. ALMELOR, petitioner,
vs.
THE HON. REGIONAL TRIAL COURT OF
LAS PIÑAS CITY, BRANCH 254, and
LEONIDA T. ALMELOR, respondents.
DECISION
REYES, R.T., J.:
FAMILY (WEEK 5) | CHAVEZ
MARRIAGE, in its totality, involves the
spouses' right to the community of their whole
lives. It likewise involves a true intertwining of
personalities.1
This is a petition for review on certiorari of the
Decision2 of the Court of Appeals (CA) denying
the petition for annulment of judgment and
affirming in toto the decision of the Regional
Trial Court (RTC), Las Piñas, Branch 254. The
CA dismissed outright the Rule 47 petition for
being the wrong remedy.
The Facts
Petitioner Manuel G. Almelor (Manuel) and
respondent Leonida Trinidad (Leonida) were
married on January 29, 1989 at the Manila
Cathedral.3 Their union bore three children: (1)
Maria Paulina Corinne, born on October 20,
1989; (2) Napoleon Manuel, born on August 9,
1991; and (3) Manuel Homer, born on July 4,
1994.4 Manuel and Leonida are both medical
practitioners, an anesthesiologist and a
pediatrician, respectively.5
After eleven (11) years of marriage, Leonida
filed a petition with the RTC in Las Piñas City
to annul their marriage on the ground that
Manuel was psychologically incapacitated to
perform his marital obligations. The case,
docketed as LP-00-0132 was raffled off to
Branch 254.
During the trial, Leonida testified that she first
met Manuel in 1981 at the San Lazaro Hospital
where they worked as medical student clerks. At
that time, she regarded Manuel as a very
thoughtful person who got along well with other
people. They soon became sweethearts. Three
years after, they got married.6
Leonida averred that Manuel's kind and gentle
demeanor did not last long. In the public eye,
Manuel was the picture of a perfect husband and
father. This was not the case in his private life.
At home, Leonida described Manuel as a harsh
disciplinarian, unreasonably meticulous, easily
angered. Manuel's unreasonable way of
imposing discipline on their children was the
11

cause of their frequent fights as a couple. 7
Leonida complained that this was in stark
contrast to the alleged lavish affection Manuel
has for his mother. Manuel's deep attachment to
his mother and his dependence on her decision-
making were incomprehensible to Leonida.8
Further adding to her woes was his concealment
to her of his homosexuality. Her suspicions were
first aroused when she noticed Manuel's peculiar
closeness to his male companions. For instance,
she caught him in an indiscreet telephone
conversation manifesting his affection for a male
caller.9 She also found several pornographic
homosexual materials in his possession. 10 Her
worse fears were confirmed when she saw
Manuel kissed another man on the lips. The man
was a certain Dr. Nogales.11 When she
confronted Manuel, he denied everything. At
this point, Leonida took her children and left
their conjugal abode. Since then, Manuel
stopped giving support to their children.12
Dr. Valentina del Fonso Garcia, a clinical
psychologist, was presented to prove Leonida's
claim. Dr. del Fonso Garcia testified that she
conducted evaluative interviews and a battery of
psychiatric tests on Leonida. She also had a one-
time interview with Manuel and face-to-face
interviews with Ma. Paulina Corrinne (the eldest
child).13 She concluded that Manuel is
psychologically incapacitated.14 Such incapacity
is marked by antecedence; it existed even before
the marriage and appeared to be incurable.
Manuel, for his part, admitted that he and
Leonida had some petty arguments here and
there. He, however, maintained that their marital
relationship was generally harmonious. The
petition for annulment filed by Leonida came as
a surprise to him.
Manuel countered that the true cause of
Leonida's hostility against him was their
professional rivalry. It began when he refused to
heed the memorandum15 released by Christ the
King Hospital. The memorandum ordered him
to desist from converting his own lying-in clinic
to a primary or secondary hospital. 16 Leonida's
family owns Christ the King Hospital which is
FAMILY (WEEK 5) | CHAVEZ
situated in the same subdivision as Manuel's
clinic and residence.17 In other words, he and her
family have competing or rival hospitals in the
same vicinity.
Manuel belied her allegation that he was a cruel
father to their children. He denied maltreating
them. At most, he only imposed the necessary
discipline on the children.
He also defended his show of affection for his
mother. He said there was nothing wrong for
him to return the love and affection of the
person who reared and looked after him and his
siblings. This is especially apt now that his
mother is in her twilight years. 18 Manuel pointed
out that Leonida found fault in this otherwise
healthy relationship because of her very jealous
and possessive nature.19
This same overly jealous behavior of Leonida
drove Manuel to avoid the company of female
friends. He wanted to avoid any further
misunderstanding with his wife. But, Leonida
instead conjured up stories about his sexual
preference. She also fabricated tales about
pornographic materials found in his possession
to cast doubt on his masculinity.20
To corroborate his version, he presented his
brother, Jesus G. Almelor. Jesus narrated that he
usually stayed at Manuel's house during his
weekly trips to Manila from Iriga City. He was a
witness to the generally harmonious relationship
between his brother Manuel and sister-in-law,
Leonida. True, they had some quarrels typical of
a husband and wife relationship. But there was
nothing similar to what Leonida described in her
testimony.21
Jesus further testified that he was with his
brother on the day Leonida allegedly saw
Manuel kissed another man. He denied that such
an incident occurred. On that particular date, 22
he and Manuel went straight home from a trip to
Bicol. There was no other person with them at
that time, except their driver.23
Manuel expressed his intention to refute Dr. del
Fonso Garcia's findings by presenting his own
12

expert witness. However, no psychiatrist was
presented.
RTC Disposition
By decision dated November 25, 2005, the RTC
granted the petition for annulment, with the
following disposition:
WHEREFORE, premised on the foregoing,
judgment is hereby rendered:
1. Declaring the marriage contracted by herein
parties on 29 January 1989 and all its effects
under the law null and void from the
beginning;
2. Dissolving the regime of community property
between the same parties with forfeiture of
defendant's share thereon in favor of the same
parties' children whose legal custody is awarded
to plaintiff with visitorial right afforded to
defendant;
3. Ordering the defendant to give monthly
financial support to all the children; and
4. Pursuant to the provisions of A.M. No. 02-11-
10-SC:
a. Directing the Branch Clerk of this Court to
enter this Judgment upon its finality in the Book
of Entry of Judgment and to issue an Entry of
Judgment in accordance thereto; and
b. Directing the Local Civil Registrars of Las
Piñas City and Manila City to cause the
registration of the said Entry of Judgment in
their respective Books of Marriages.
Upon compliance, a decree of nullity of
marriage shall be issued.
SO ORDERED.24 (Emphasis supplied)
The trial court nullified the marriage, not on the
ground of Article 36, but Article 45 of the
Family Code. It ratiocinated:
FAMILY (WEEK 5) | CHAVEZ
x x x a careful evaluation and in-depth analysis
of the surrounding circumstances of the
allegations in the complaint and of the evidence
presented in support thereof (sic) reveals that in
this case (sic) there is more than meets the eyes
(sic).
Both legally and biologically, homosexuality x x
x is, indeed, generally incompatible with hetero
sexual marriage. This is reason enough that in
this jurisdiction (sic) the law recognizes
marriage as a special contract exclusively only
between a man and a woman x x x and thus
when homosexuality has trespassed into
marriage, the same law provides ample remedies
to correct the situation [Article 45(3) in relation
to Article 46(4) or Article 55, par. 6, Family
Code]. This is of course in recognition of the
biological fact that no matter how a man cheats
himself that he is not a homosexual and forces
himself to live a normal heterosexual life, there
will surely come a time when his true sexual
preference as a homosexual shall prevail in
haunting him and thus jeopardizing the solidity,
honor, and welfare of his own family.25
Manuel filed a notice of appeal which was,
however, denied due course. Undaunted, he filed
a petition for annulment of judgment with the
CA.26
Manuel contended that the assailed decision was
issued in excess of the lower court's jurisdiction;
that it had no jurisdiction to dissolve the
absolute community of property and forfeit his
conjugal share in favor of his children.
CA Disposition
On July 31, 2007, the CA denied the petition,
disposing as follows:
WHEREFORE, the present Petition for
Annulment of Judgment is hereby DENIED. The
Court AFFIRMS in toto the Decision (dated
November 25, 2005) of the Regional Trial Court
(Branch 254), in Las Piñas City, in Civil Case
No. LP-00-0132. No costs.27
13

The CA stated that petitioner pursued the wrong
remedy by filing the extraordinary remedy of
petition for annulment of judgment. Said the
appellate court:
It is obvious that the petitioner is questioning the
propriety of the decision rendered by the lower
Court. But the remedy assuming there was a
mistake is not a Petition for Annulment of
Judgment but an ordinary appeal. An error of
judgment may be reversed or corrected only by
appeal.
What petitioner is ascribing is an error of
judgment, not of jurisdiction, which is properly
the subject of an ordinary appeal.
In short, petitioner admits the jurisdiction of the
lower court but he claims excess in the exercise
thereof. "Excess" assuming there was is not
covered by Rule 47 of the 1997 Rules of Civil
Procedure. The Rule refers the lack of
jurisdiction and not the exercise thereof.28
Issues
Petitioner Manuel takes the present recourse via
Rule 45, assigning to the CA the following
errors:
I rules of procedure, in this wise:
THE HONORABLE COURT OF APPEALS
ERRED IN NOT TREATING THE PETITION
FOR ANNULMENT OF JUDGMENT AS A
PETITION FOR REVIEW IN VIEW OF THE
IMPORTANCE OF THE ISSUES INVOLVED
AND IN THE INTEREST OF JUSTICE;
II
THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DECISION OF
THE TRIAL COURT AS REGARDS THE
ORDER DECLARING THE MARRIAGE AS
NULL AND VOID ON THE GROUND OF
FAMILY (WEEK 5) | CHAVEZ
PETITIONER'S PSYCHOLOGICAL
INCAPACITY;
III
THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DECISION OF
THE TRIAL COURT AS REGARDS THE
ORDER TO FORFEIT THE SHARE OF
PETITIONER IN HIS SHARE OF THE
CONJUGAL ASSETS.29
Our Ruling
I. The stringent rules of procedures may be
relaxed to serve the demands of substantial
justice and in the Court's exercise of equity
jurisdiction.
Generally, an appeal taken either to the Supreme
Court or the CA by the wrong or inappropriate
mode shall be dismissed.30 This is to prevent the
party from benefiting from one's neglect and
mistakes. However, like most rules, it carries
certain exceptions. After all, the ultimate
purpose of all rules of procedures is to achieve
substantial justice as expeditiously as possible.31
Annulment of judgment under Rule 47 is a last
remedy. It can not be resorted to if the ordinary
remedies are available or no longer available
through no fault of petitioner.32 However, in
Buenaflor v. Court of Appeals,33 this Court
clarified the proper appreciation for technical
Rules of procedures are intended to promote,
not to defeat, substantial justice and,
therefore, they should not be applied in a
very rigid and technical sense. The exception
is that while the Rules are liberally construed,
the provisions with respect to the rules on the
manner and periods for perfecting appeals
are strictly applied. As an exception to the
exception, these rules have sometimes been
relaxed on equitable considerations. Also, in
some cases the Supreme Court has given due
course to an appeal perfected out of time where
a stringent application of the rules would have
denied it, but only when to do so would serve
14

the demands of substantial justice and in the
exercise of equity jurisdiction of the Supreme
Court.34 (Emphasis and underscoring supplied)
For reasons of justice and equity, this Court has
allowed exceptions to the stringent rules
governing appeals.35 It has, in the past, refused
to sacrifice justice for technicality.36
After discovering the palpable error of his
petition, Manuel seeks the indulgence of this
Court to consider his petition before the CA
instead as a petition for certiorari under Rule
65.
A perusal of the said petition reveals that
Manuel imputed grave abuse of discretion to the
lower court for annulling his marriage on
account of his alleged homosexuality. This is not
the first time that this Court is faced with a
similar situation. In Nerves v. Civil Service
Commission,37 petitioner Delia R. Nerves
elevated to the CA a Civil Service Commission
(CSC) decision suspending her for six (6)
months. The CSC ruled Nerves, a public school
teacher, is deemed to have already served her
six-month suspension during the pendency of the
case. Nevertheless, she is ordered reinstated
without back wages. On appeal, Nerves stated in
her petition, inter alia:
1. This is a petition for certiorari filed pursuant
to Article IX-A, Section 7 of the Constitution of
the Philippines and under Rule 65 of the Rules
of Court.
2. But per Supreme Court Revised
Administrative Circular No. 1-95 (Revised
Circular No. 1-91) petitioner is filing the instant
petition with this Honorable Court instead of the
Supreme Court.38 (Underscoring supplied)
The CA dismissed Nerves' petition for certiorari
for being the wrong remedy or the inappropriate
mode of appeal.39 The CA opined that "under the
Supreme Court Revised Administrative Circular
No. 1-95 x x x appeals from judgments or final
orders or resolutions of CSC is by a petition for
review."40
FAMILY (WEEK 5) | CHAVEZ
This Court granted Nerves petition and held that
she had substantially complied with the
Administrative Circular. The Court stated:
That it was erroneously labeled as a petition for
certiorari under Rule 65 of the Rules of Court is
only a minor procedural lapse, not fatal to the
appeal. x x x
More importantly, the appeal on its face appears
to be impressed with merit. Hence, the Court of
Appeals should have overlooked the
insubstantial defects of the petition x x x in
order to do justice to the parties concerned.
There is, indeed, nothing sacrosanct about
procedural rules, which should be liberally
construed in order to promote their object and
assist the parties in obtaining just, speedy, and
inexpensive determination of every action or
proceeding. As it has been said, where the rigid
application of the rules would frustrate
substantial justice, or bar the vindication of a
legitimate grievance, the courts are justified in
exempting a particular case from the operation
of the rules.41 (Underscoring supplied)
Similarly, in the more recent case of Tan v.
Dumarpa,42 petitioner Joy G. Tan availed of a
wrong remedy by filing a petition for review on
certiorari instead of a motion for new trial or an
ordinary appeal. In the interest of justice, this
Court considered the petition, pro hac vice, as a
petition for certiorari under Rule 65.
This Court found that based on Tan's allegations,
the trial court prima facie committed grave
abuse of discretion in rendering a judgment by
default. If uncorrected, it will cause petitioner
great injustice. The Court elucidated in this
wise:
Indeed, where as here, there is a strong showing
that grave miscarriage of justice would result
from the strict application of the Rules, we will
not hesitate to relax the same in the interest of
substantial justice.43 (Underscoring supplied)
Measured by the foregoing yardstick, justice
will be better served by giving due course to the
present petition and treating petitioner's CA
15

petition as one for certiorari under Rule 65,
considering that what is at stake is the validity or
non-validity of a marriage.
In Salazar v. Court of Appeals,44 citing Labad v.
University of Southeastern Philippines, this
Court reiterated:
x x x The dismissal of appeals on purely
technical grounds is frowned upon. While the
right to appeal is a statutory, not a natural right,
nonetheless it is an essential part of our judicial
system and courts should proceed with caution
so as not to deprive a party of the right to appeal,
but rather, ensure that every party-litigant has
the amplest opportunity for the proper and just
disposition of his cause, free from the
constraints of technicalities.45
Indeed, it is far better and more prudent for a
court to excuse a technical lapse and afford the
parties a review of the case on the merits to
attain the ends of justice.46
Furthermore, it was the negligence and
incompetence of Manuel's counsel that
prejudiced his right to appeal. His counsel, Atty.
Christine Dugenio, repeatedly availed of
inappropriate remedies. After the denial of her
notice of appeal, she failed to move for
reconsideration or new trial at the first instance.
She also erroneously filed a petition for
annulment of judgment rather than pursue an
ordinary appeal.
These manifest errors were clearly indicative of
counsel's incompetence. These gravely worked
to the detriment of Manuel's appeal. True it is
that the negligence of counsel binds the client.
Still, this Court has recognized certain
exceptions: (1) where reckless or gross
negligence of counsel deprives the client of due
process of law; (2) when its application will
result in outright deprivation of the client's
liberty and property; or (3) where the interest of
justice so require.47
The negligence of Manuel's counsel falls under
the exceptions. Ultimately, the reckless or gross
negligence of petitioner's former counsel led to
FAMILY (WEEK 5) | CHAVEZ
the loss of his right to appeal. He should not be
made to suffer for his counsel's grave mistakes.
Higher interests of justice and equity demand
that he be allowed to ventilate his case in a
higher court.
In Apex Mining, Inc. v. Court of Appeals,48 this
Court explained thus:
It is settled that the negligence of counsel binds
the client. This is based on the rule that any act
performed by a counsel within the scope of his
general or implied authority is regarded as an act
of his client. However, where counsel is guilty
of gross ignorance, negligence and dereliction of
duty, which resulted in the client's being held
liable for damages in a damage suit, the client is
deprived of his day in court and the judgment
may be set aside on such ground. In the instant
case, higher interests of justice and equity
demand that petitioners be allowed to present
evidence on their defense. Petitioners may not
be made to suffer for the lawyer's mistakes. This
Court will always be disposed to grant relief
to parties aggrieved by perfidy, fraud,
reckless inattention and downright
incompetence of lawyers, which has the
consequence of depriving their clients, of
their day in court.49 (Emphasis supplied)
Clearly, this Court has the power to except a
particular case from the operation of the rule
whenever the demands of justice require it. With
more conviction should it wield such power in a
case involving the sacrosanct institution of
marriage. This Court is guided with the thrust of
giving a party the fullest opportunity to establish
the merits of one's action.50
The client was likewise spared from counsel's
negligence in Government Service Insurance
System v. Bengson Commercial Buildings, Inc.51
and Ancheta v. Guersey-Dalaygon.52 Said the
Court in Bengson:
But if under the circumstances of the case, the
rule deserts its proper office as an aid to justice
and becomes a great hindrance and chief enemy,
its rigors must be relaxed to admit exceptions
thereto and to prevent a miscarriage of justice. In
16

other words, the court has the power to except a
particular case from the operation of the rule
whenever the purposes of justice require it.53
II. Concealment of homosexuality is the proper
ground to annul a marriage, not
homosexuality per se.
Manuel is a desperate man determined to
salvage what remains of his marriage. Persistent
in his quest, he fought back all the heavy
accusations of incapacity, cruelty, and doubted
masculinity thrown at him.
The trial court declared that Leonida's petition
for nullity had "no basis at all because the
supporting grounds relied upon can not legally
make a case under Article 36 of the Family
Code." It went further by citing Republic v.
Molina:54
Indeed, mere allegations of conflicting
personalities, irreconcilable differences,
incessant quarrels and/or beatings, unpredictable
mood swings, infidelities, vices, abandonment,
and difficulty, neglect, or failure in the
performance of some marital obligations do not
suffice to establish psychological incapacity. 55
If so, the lower court should have dismissed
outright the petition for not meeting the
guidelines set in Molina. What Leonida
attempted to demonstrate were Manuel's
homosexual tendencies by citing overt acts
generally predominant among homosexual
individuals.56 She wanted to prove that the
perceived homosexuality rendered Manuel
incapable of fulfilling the essential marital
obligations.
But instead of dismissing the petition, the trial
court nullified the marriage between Manuel
and Leonida on the ground of vitiated consent
by virtue of fraud. In support of its conclusion,
the lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15
December 2003), when there is smoke surely
there is fire. Although vehemently denied by
defendant, there is preponderant evidence
FAMILY (WEEK 5) | CHAVEZ
enough to establish with certainty that defendant
is really a homosexual. This is the fact that can
be deduced from the totality of the marriage life
scenario of herein parties.
Before his marriage, defendant knew very well
that people around him even including his own
close friends doubted his true sexual preference
(TSN, pp. 35-36, 13 December 2000; pp. 73-75,
15 December 2003). After receiving many
forewarnings, plaintiff told defendant about the
rumor she heard but defendant did not do
anything to prove to the whole world once and
for all the truth of all his denials. Defendant
threatened to sue those people but nothing
happened after that. There may have been more
important matters to attend to than to waste time
and effort filing cases against and be effected by
these people and so, putting more premiums on
defendant's denials, plaintiff just the same
married him. Reasons upon reasons may be
advanced to either exculpate or nail to the cross
defendant for his act of initially concealing his
homosexuality to plaintiff, but in the end, only
one thing is certain - even during his marriage
with plaintiff, the smoke of doubt about his real
preference continued and even got thicker,
reason why obviously defendant failed to
establish a happy and solid family; and in so
failing, plaintiff and their children became his
innocent and unwilling victims.
Yes, there is nothing untoward of a man if, like
herein defendant, he is meticulous over even
small details in the house (sic) like wrongly
folded bed sheets, etc. or if a man is more
authoritative in knowing what clothes or jewelry
shall fit his wife (pp. 77-81, TSN, 15 December
2003); but these admissions of defendant taken
in the light of evidence presented apparently
showing that he had extra fondness of his male
friends (sic) to the extent that twice on separate
occasions (pp. 4-7, TSN, 14 February 2001) he
was allegedly seen by plaintiff kissing another
man lips-to-lips plus the homosexual magazines
and tapes likewise allegedly discovered
underneath his bed (Exhibits "L" and "M"), the
doubt as to his real sex identity becomes
stronger. The accusation of plaintiff versus
thereof of defendant may be the name of the
game in this case; but the simple reason of
17

professional rivalry advanced by the defendant
is certainly not enough to justify and obscure the
question why plaintiff should accuse him of
such a very untoward infidelity at the expense
and humiliation of their children and family as a
whole.57
Evidently, no sufficient proof was presented to
substantiate the allegations that Manuel is a
homosexual and that he concealed this to
Leonida at the time of their marriage. The lower
court considered the public perception of
Manuel's sexual preference without the
corroboration of witnesses. Also, it took
cognizance of Manuel's peculiarities and
interpreted it against his sexuality.
Even assuming, ex gratia argumenti, that
Manuel is a homosexual, the lower court cannot
appreciate it as a ground to annul his marriage
with Leonida. The law is clear - a marriage may
be annulled when the consent of either party was
obtained by fraud,58 such as concealment of
homosexuality.59 Nowhere in the said decision
was it proven by preponderance of evidence that
Manuel was a homosexual at the onset of his
marriage and that he deliberately hid such fact to
his wife.60 It is the concealment of
homosexuality, and not homosexuality per se,
that vitiates the consent of the innocent party.
Such concealment presupposes bad faith and
intent to defraud the other party in giving
consent to the marriage.
Consent is an essential requisite of a valid
marriage. To be valid, it must be freely given by
both parties. An allegation of vitiated consent
must be proven by preponderance of evidence.
The Family Code has enumerated an exclusive
list of circumstances61 constituting fraud.
Homosexuality per se is not among those cited,
but its concealment.
This distinction becomes more apparent when
we go over the deliberations62 of the Committees
on the Civil Code and Family Law, to wit:
Justice Caguioa remarked that this ground
should be eliminated in the provision on the
grounds for legal separation. Dean Gupit,
FAMILY (WEEK 5) | CHAVEZ
however, pointed out that in Article 46, they are
talking only of "concealment," while in the
article on legal separation, there is actuality.
Judge Diy added that in legal separation, the
ground existed after the marriage, while in
Article 46, the ground existed at the time of the
marriage. Justice Reyes suggested that, for
clarity, they add the phrase "existing at the time
of the marriage" at the end of subparagraph (4).
The Committee approved the suggestion.63
To reiterate, homosexuality per se is only a
ground for legal separation. It is its concealment
that serves as a valid ground to annul a
marriage.64 Concealment in this case is not
simply a blanket denial, but one that is
constitutive of fraud. It is this fundamental
element that respondent failed to prove.
In the United States, homosexuality has been
considered as a basis for divorce. It indicates
that questions of sexual identity strike so deeply
at one of the basic elements of marriage, which
is the exclusive sexual bond between the
spouses.65 In Crutcher v. Crutcher,66 the Court
held:
Unnatural practices of the kind charged here are
an infamous indignity to the wife, and which
would make the marriage relation so revolting to
her that it would become impossible for her to
discharge the duties of a wife, and would defeat
the whole purpose of the relation. In the natural
course of things, they would cause mental
suffering to the extent of affecting her health. 67
However, although there may be similar
sentiments here in the Philippines, the legal
overtones are significantly different. Divorce is
not recognized in the country. Homosexuality
and its alleged incompatibility to a healthy
heterosexual life are not sanctioned as grounds
to sever the marriage bond in our jurisdiction. At
most, it is only a ground to separate from bed
and board.
What was proven in the hearings a quo was a
relatively blissful marital union for more than
eleven (11) years, which produced three (3)
children. The burden of proof to show the nullity
18

of the marriage rests on Leonida. Sadly, she
failed to discharge this onus.
The same failure to prove fraud which
purportedly resulted to a vitiated marital consent
was found in Villanueva v. Court of Appeals.68
In Villanueva, instead of proving vitiation of
consent, appellant resorted to baseless portrayals
of his wife as a perpetrator of fraudulent
schemes. Said the Court:
Factual findings of the Court of Appeals,
especially if they coincide with those of the trial
court, as in the instant case, are generally
binding on this Court. We affirm the findings of
the Court of Appeals that petitioner freely and
voluntarily married private respondent and that
no threats or intimidation, duress or violence
compelled him to do so, thus -
Appellant anchored his prayer for the annulment
of his marriage on the ground that he did not
freely consent to be married to the appellee. He
cited several incidents that created on his mind a
reasonable and well-grounded fear of an
imminent and grave danger to his life and safety.
xxx
The Court is not convinced that appellant's
apprehension of danger to his person is so
overwhelming as to deprive him of the will to
enter voluntarily to a contract of marriage. It is
not disputed that at the time he was allegedly
being harassed, appellant worked as a security
guard in a bank. Given the rudiments of self-
defense, or, at the very least, the proper way to
keep himself out of harm's way. x x x
Appellant also invoked fraud to annul his
marriage, as he was made to believe by appellee
that the latter was pregnant with his child when
they were married. Appellant's excuse that he
could not have impregnated the appellee because
he did not have an erection during their tryst is
flimsy at best, and an outright lie at worst. The
complaint is bereft of any reference to his
inability to copulate with the appellee. x x x
xxxx
FAMILY (WEEK 5) | CHAVEZ
x x x The failure to cohabit becomes relevant
only if it arises as a result of the perpetration of
any of the grounds for annulling the marriage,
such as lack of parental consent, insanity, fraud,
intimidation, or undue influence x x x. Since the
appellant failed to justify his failure to cohabit
with the appellee on any of these grounds, the
validity of his marriage must be upheld.69
Verily, the lower court committed grave abuse
of discretion, not only by solely taking into
account petitioner's homosexuality per se and
not its concealment, but by declaring the
marriage void from its existence.
This Court is mindful of the constitutional
policy to protect and strengthen the family as the
basic autonomous social institution and marriage
as the foundation of the family. 70 The State and
the public have vital interest in the maintenance
and preservation of these social institutions
against desecration by fabricated evidence. 71
Thus, any doubt should be resolved in favor of
the validity of marriage.
III. In a valid marriage, the husband and wife
jointly administer and enjoy their community
or conjugal property.
Article 96 of the Family Code, on regimes of
absolute community property, provides:
Art. 96. The administration and enjoyment of
the community property shall belong to both
spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for a proper
remedy, which must be availed of within five
years from the date of the contract implementing
such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the common properties, the
other spouse may assume sole powers of
administration. These powers do not include the
powers of disposition or encumbrance without
the authority of the court or the written consent
of the other spouse. In the absence of such
authority or consent, the disposition or
19

encumbrance shall be void. However, the
transaction shall be construed as a continuing
offer on the part of the consenting spouse and
the third person, and may be perfected as a
binding contract upon the acceptance by the
other spouse or authorization by the court before
the offer is withdrawn by either or both offerors.
A similar provision, Article 124 72 prescribes
joint administration and enjoyment in a regime
of conjugal partnership. In a valid marriage,
both spouses exercise administration and
enjoyment of the property regime, jointly.
In the case under review, the RTC decreed a
dissolution of the community property of
Manuel and Leonida. In the same breath, the
trial court forfeited Manuel's share in favor of
the children. Considering that the marriage is
upheld valid and subsisting, the dissolution and
forfeiture of Manuel's share in the property
regime is unwarranted. They remain the joint
administrators of the community property.
WHEREFORE, the petition is GRANTED.
The appealed Decision is REVERSED and SET
ASIDE and the petition in the trial court to
annul the marriage is DISMISSED.
SO ORDERED.
r. Discuss Article 47 of the Family Code.
Art. 47. The action for annulment of
marriage must be filed by the following
persons and within the periods indicated
herein:
(1) For causes mentioned in number 1 of
Article 45 by the party whose parent or
guardian did not give his or her consent,
within five years after attaining the age of
FAMILY (WEEK 5) | CHAVEZ
twenty-one, or by the parent or guardian or
person having legal charge of the minor, at
any time before such party has reached the
age of twenty-one;
(2) For causes mentioned in number 2 of
Article 45, by the same spouse, who had no
knowledge of the other’s insanity; or by any
relative or guardian or person having legal
charge of the insane, at any time before the
death of either party, or by the insane spouse
during a lucid interval or after regaining
sanity;
(3) For causes mentioned in number 3 of
Article 45, by the injured party, within five
years after the discovery of the fraud;
(4) For causes mentioned in number 4 of
Article 45, by the injured party, within five
years from the time the force, intimidation
or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6
of Article 45, by the injured party, within
five years after the marriage. (87a)
s. Discuss Article 48 of the Family Code.
Art. 48. In all cases of annulment or
declaration of absolute nullity of marriage,
the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent
collusion between the parties and to take
care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon
a stipulation of facts or confession of
judgment. (88a)
t. Discuss Tuason v. Court of Appeals,
GR. No. 116607, 10 April 1996.
20

SECOND DIVISION
[G.R. No. 116607. April 10, 1996.]
EMILIO TUASON, Petitioner, v. COURT OF
APPEALS and MARIA VICTORIA L.
TUASON, Respondents.
Seguion Reyna, Montecillo & Ongsiako for
Petitioner.
Salonga, Hernandez & Allado for Private
Respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE;
RELIEF FROM JUDGMENT, ALLOWED
ONLY IN EXCEPTIONAL CASES WHERE
THERE IS NO OTHER AVAILABLE OR
ADEQUATE REMEDY. — A petition for relief
from judgment is an equitable remedy; it is
allowed only in exceptional cases where there is
no other available or adequate remedy. When a
party has another remedy available to him,
which may be either a motion for new trial or
appeal from an adverse decision of the trial
court, and he was not prevented by fraud,
accident, mistake or excusable negligence from
filing such motion or taking such appeal, he
cannot avail himself of this petition. Indeed,
relief will not be granted to a party who seeks
avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own
negligence; otherwise the petition for relief can
be used to revive the right to appeal which have
been lost thru inexcusable negligence.
2. ID.; ID.; ID.; WHEN AVAILED MUST BE
BASED ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE
FAMILY (WEEK 5) | CHAVEZ
NEGLIGENCE AND THAT IT IS SHOWN
THAT PETITIONER HAS A GOOD,
SUBSTANTIAL AND MERITORIOUS
DEFENSE OR CAUSE OF ACTION. — A
petition for relief from judgment is governed by
Rule 38, Section 2 of the Revised Rules of
Court. A final and executory judgment or order
of the Regional Trial Court may be set aside on
the ground of fraud, accident, mistake or
excusable negligence. In addition, the petitioner
must assert facts showing that he has a good,
substantial and meritorious defense or cause of
action. If the petition is granted, the court shall
proceed to hear and determine the case as if a
timely motion for new trial had been granted
therein.
3. ID.; ID.; ID.; NOTICES SENT TO
COUNSEL OF RECORD, BINDING UPON
THE CLIENT. — The failure of petitioner’s
counsel to notify him on time of the adverse
judgment to enable him to appeal therefrom is
negligence which is not excusable. Notice sent
to counsel of record is binding upon the client
and the neglect or failure of counsel to inform
him of an adverse judgment resulting in the loss
of this right to appeal is not a ground for setting
aside a judgment valid and regular on its face.
4. ID.; ID.; ID.; COUNSEL REQUIRED TO
INFORM THE TRIAL COURT THE REASON
FOR HIS CLIENT’S NON-APPEARANCE AT
THE SCHEDULED HEARINGS. — Similarly
inexcusable was the failure of his former
counsel to inform the trial court of petitioner’s
confinement and medical treatment as the reason
for his non-appearance at the scheduled
hearings. Petitioner has not given any reason
why his former counsel, intentionally or
unintentionally, did not inform the court of this
fact. This led the trial court to order the case
deemed submitted for decision on the basis of
the evidence presented by the private respondent
alone. To compound the negligence of
petitioner’s counsel, the order of the trial court
was never assailed via a motion for
reconsideration.
5. ID.; EVIDENCE; CREDIBILITY OF
WITNESSES; FACTUAL FINDINGS OF THE
TRIAL COURT UPHELD ABSENT PROOF
21

THAT THE WITNESSES TESTIMONIES
ARE CLEARLY AND MANIFESTLY
ERRONEOUS. — Suffice it to state that the
finding of the trial court as to the existence or
non-existence of petitioner’s psychological
incapacity at the time of the marriage is final and
binding on us. Petitioner has not sufficiently
shown that the trial court’s factual findings and
evaluation of the testimonies of private
respondent’s witnesses vis-a-vis petitioner’s
defenses are clearly and manifestly erroneous.
6. CONSTITUTIONAL LAW; BILL OF
RIGHTS; PROCEDURAL DUE PROCESS;
NOT VIOLATED IF PETITIONER WAS
GIVEN OPPORTUNITY TO BE HEARD. —
Petitioner cannot now claim that he was
deprived of due process. He may have lost his
right to present evidence but he was not denied
his day in court. As the records show, Petitioner,
through counsel, actively participated in the
proceedings below. He filed his answer to the
petition, cross-examined private respondent’s
witnesses and even submitted his opposition to
private respondent’s motion for dissolution of
the conjugal partnership of gains.
7. CIVIL LAW; FAMILY CODE;
ANNULMENT, DECLARATION OF
NULLITY AND LEGAL SEPARATION;
PROSECUTING ATTORNEY OR FISCAL
MAY BE ORDERED BY THE COURT TO
INTERVENE ON BEHALF OF THE STATE
TO PREVENT COLLUSION BETWEEN THE
PARTIES. — A grant of annulment of marriage
or legal separation by default is fraught with the
danger of collusion. Hence, in all cases for
annulment, declaration of nullity of marriage
and legal separation, the prosecuting attorney or
fiscal is ordered to appear on behalf of the state
for the purpose of preventing any collusion
between the parties and to take care that their
evidence is not fabricated or suppressed. If the
defendant spouse fails to answer the complaint,
the court cannot declare him or her in default but
instead, should order the prosecuting attorney to
determine if collusion exists between the parties.
The prosecuting attorney or fiscal may oppose
the application for legal separation or annulment
through the presentation of his own evidence, if
in his opinion, the proof adduced is dubious and
FAMILY (WEEK 5) | CHAVEZ
fabricated.
8. ID.; ID.; ID.; NON-INTERFERENCE OF A
PROSECUTING ATTORNEY IS NOT FATAL
TO THE VALIDITY OF THE PROCEEDINGS
IN THE TRIAL COURT IF PETITIONER
VEHEMENTLY OPPOSED THE
ANNULMENT OF THEIR MARRIAGE IN
THE SAID COURT. — The role of the
prosecuting attorney or fiscal in annulment of
marriage and legal separation proceedings is to
determine whether collusion exists between the
parties and to take care that the evidence is not
suppressed or fabricated. Petitioner’s vehement
opposition to the annulment proceedings negates
the conclusion that collusion existed between the
parties. There is no allegation by the petitioner
that evidence was suppressed or fabricated by
any of the parties. Under these circumstances,
we are convinced that the non-intervention of a
prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the
validity of the proceedings in the trial court.
DECISION
PUNO, J.:
This petition for review on certiorari seeks to
annul and set aside the decision dated July 29,
1994 of the Court of Appeals in CA-G.R. CV
No. 37925 denying petitioner’s appeal from an
order of the Regional Trial Court, Branch 149,
Makati in Civil Case No. 3769.
This case arose from the following
facts:chanrob1es virtual 1aw library
In 1989, private respondent Maria Victoria
Lopez Tuason filed with the Regional Trial
Court, Branch 149, Makati a petition for
annulment or declaration of nullity of her
marriage to petitioner Emilio R. Tuason. In her
complaint, private respondent alleged that she
and petitioner were married on June 3, 1972 and
from this union, begot two children; that at the
time of the marriage, petitioner was already
psychologically incapacitated to comply with his
22

essential marital obligations which became
manifest afterward and resulted in violent fights
between husband and wife; that in one of their
fights, petitioner inflicted physical injuries on
private respondent which impelled her to file a
criminal case for physical injuries against him;
that petitioner used prohibited drugs, was
apprehended by the authorities and sentenced to
a one-year suspended penalty and has not been
rehabilitated; that petitioner was a womanizer,
and in 1984, he left the conjugal home and
cohabited with three women in succession, one
of whom he presented to the public as his wife;
that after he left the conjugal dwelling, petitioner
gave minimal support to the family and even
refused to pay for the tuition fees of their
children compelling private respondent to accept
donations and dole-outs from her family and
friends; that petitioner likewise became a
spendthrift and abused his administration of the
conjugal partnership by alienating some of their
assets and incurring large obligations with
banks, credit card companies and other financial
institutions, without private respondent’s
consent; that attempts at reconciliation were
made but they all failed because of petitioner’s
refusal to reformed. In addition to her prayer for
annulment of marriage, private respondent
prayed for powers of administration to save the
conjugal properties from further dissipation. 1
Petitioner answered denying the imputations
against him. As affirmative defense, he claimed
that he and private respondent were a normal
married couple during the first ten years of their
marriage and actually begot two children during
this period; that it was only in 1982 that they
began to have serious personal differences when
his wife did not accord the respect and dignity
due him as a husband but treated him like a
persona non grata; that due to the "extreme
animosities" between them, he temporarily left
the conjugal home for a "cooling-off period" in
1984; that it is private respondent who had been
taking prohibited drugs and had a serious affair
with another man; that petitioner’s work as
owner and operator of a radio and television
station exposed him to malicious gossip linking
him to various women in media and the
entertainment world; and that since 1984, he
experienced financial reverses in his business
FAMILY (WEEK 5) | CHAVEZ
and was compelled, with the knowledge of his
wife, to dispose of some of the conjugal shares
in exclusive golf and country clubs. Petitioner
petitioned the court to allow him to return to the
conjugal home and continue his administration
of the conjugal partnership.
After the issues were joined, trial commenced on
March 30, 1990. Private respondent presented
four witnesses, namely, herself; Dr. Samuel
Wiley, a Canon Law expert and marriage
counselor of both private respondent and
petitioner; Ms. Adelita Prieto, a close friend of
the spouses, and Atty. Jose F. Racela IV, private
respondent’s counsel. Private respondent
likewise submitted documentary evidence
consisting of newspaper articles of her
husband’s relationship with other women, his
apprehension by the authorities for illegal
possession of drugs; and copies of a prior church
annulment decree. 2 The parties’ marriage was
clerically annulled by the Tribunal
Metropolitanum Matrimoniale which was
affirmed by the National Appellate Matrimonial
Tribunal in 1986. 3
During presentation of private respondent’s
evidence, Petitioner, on April 18, 1990, filed his
Opposition to private respondent’s petition for
appointment as administratrix of partnership of
gains.
After private respondent rested her case, the trial
court scheduled the reception of petitioner’s
evidence on may 11, 1990.
On May 8, 1990, two days before scheduled
hearing, a counsel for petitioner moved for a
postponement on the ground that the principal
counsel was out of the country and due to return
on the first week of June. 4 The court granted
the motion and reset the hearing to June 8, 1990.
5
On June 8, 1990, petitioner failed to appear. On
oral motion of private respondent, the court
declared petitioner to have waived his right to
present evidence and deemed the case submitted
for decision on the basis of the evidence
presented.
23

On June 29, 1990, the trial court rendered
judgment declaring the nullity of private
respondents marriage to petitioner and awarding
custody of the children to private Respondent.
The court ruled:jgc:chanrobles.com.ph
"WHEREFORE, in view of the foregoing, the
marriage contracted by Ma. Victoria L. Tuason
and Emilio R. Tuason on June 3, 1972 is
declared null and void ab initio on the ground of
psychological incapacity on the part of the
defendant under Sec. 36 of the Family Code. Let
herein judgment of annulment be recorded in the
registry of Mandaluyong, Metro Manila where
the marriage was contracted and in the registry
of Makati, Metro Manila where the marriage is
annulled.
The custody of the two (2) legitimate children of
the plaintiff and the defendant is hereby awarded
to the plaintiff.
The foregoing judgment is without prejudice to
the application of the other effects of annulment
as provided for under Arts. 50 and 51 of the
Family Code of the Philippines." 6
Counsel for petitioner received a copy of this
decision on August 24, 1990. No appeal was
taken from the decision.
On September 24, 1990, private respondent filed
a "Motion for Dissolution of Conjugal
Partnership of Gains and Adjudication to
Plaintiff of the Conjugal Properties." 7 Petitioner
opposed the motion on October 17, 1990. 8
Also on the same day, October 17, 1990,
Petitioner, through new counsel, filed with the
trial court a petition for relief from judgment of
the June 29, 1990 decision.
The trial court denied the petition on August 8,
1991. 9 trial court deemed him to have waived his right
Petitioner appealed before the Court of Appeals
the order of the trial court denying his petition
for relief from judgment. On July 29, 1994, the
Court of Appeals dismissed the appeal and
affirmed the order of the trial court. 10
FAMILY (WEEK 5) | CHAVEZ
Hence this petition.
The threshold issue is whether a petition for
relief from judgment is warranted under the
circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed
by Rule 38, Section 2 of the Revised Rules of
Court which provides:jgc:chanrobles.com.ph
"SECTION 2. Petition to Court of First Instance
for relief from judgment or other proceeding
thereof. — When a judgment or order is entered,
or any other proceeding is taken, against a party
in a Court of First Instance through fraud,
accident, mistake, or excusable negligence, he
may file a petition in such court and in the same
cause praying that the judgment, order or
proceeding be set aside."cralaw virtua1aw
library
Under the rules, a final and executory judgment
or order of the Regional Trial Court may be set
aside on the ground of fraud, accident, mistake
or excusable negligence. In addition, the
petitioner must assert facts showing that he has a
good, substantial and meritorious defense or
cause of action. 11 If the petition is granted, the
court shall proceed to hear and determine the
case as if a timely motion for new trial had been
granted therein. 12
In the case at bar, the decision annulling
petitioner’s marriage to private respondent had
already become final and executory when
petitioner failed to appeal during the
reglementary period. Petitioner however claims
that the decision of the trial court was null and
void for violation of his right to due process. He
contends he was denied due process when, after
failing to appear on two scheduled hearings, the
to present evidence and rendered judgment on
the basis of the evidence for Private Respondent.
Petitioner justifies his absence at the hearings on
the ground that he was then "confined for
medical and/or rehabilitation reasons. 13 In his
affidavit of merit before the trial court, he
attached a certification by Lt. Col. Plaridel F.
24

Vidal, Director of the Narcotics Command,
Drug Rehabilitation Center which states that on
March 27, 1990 petitioner was admitted for
treatment of drug dependency at the Drug
Rehabilitation Center at Camp Bagong Diwa,
Bicutan, Taguig, Manila of the Philippine
Constabulary-Integrated National Police. 14 The
records, however, show that the former counsel
of petitioner did not inform the trial court of this
confinement. And when the court rendered its
decision, the same counsel was out of the
country for which reason the decision became
final and executory as no appeal was taken
therefrom. 15
The failure of petitioner’s counsel to notify him
on time of the adverse judgment to enable him
to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is
binding upon the client and the neglect or failure
of counsel to inform him of an adverse judgment
resulting in the loss of this right to appeal is not
a ground for setting aside a judgment valid and
regular on its face. 16
Similarly inexcusable was the failure of his
former counsel to inform the trial court of
petitioner’s confinement and medical treatment
as the reason for his non-appearance at the
scheduled hearings. Petitioner has not given any
reason why his former counsel, intentionally or
unintentionally, did not inform the court of this
fact. This led the trial court to order the case
deemed submitted for decision on the basis of
the evidence presented by the private respondent
alone. To compound the negligence of
petitioner’s counsel, the order of the trial court
was never assailed via a motion for
reconsideration.
Clearly, petitioner cannot now claim that he was
deprived of due process. He may have lost his
right to present evidence but he was not denied
his day in court. As the records show, Petitioner,
through counsel, actively participated in the
proceedings below. He filed his answer to the
petition, cross-examined private respondent’s
witnesses and even submitted his opposition to
private respondent’s motion for dissolution of
the conjugal partnership of gains. 17
FAMILY (WEEK 5) | CHAVEZ
A petition for relief from judgment is an
equitable remedy; it is allowed only in
exceptional cases where there is no other
available or adequate remedy. When a party has
another remedy available to him, which may be
either a motion for new trial or appeal from an
adverse decision of the trial court, and he was
not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or
taking such appeal, he cannot avail himself of
this petition. 18 Indeed, relief will not be granted
to a party who seeks avoidance from the effects
of the judgment when the loss of the remedy at
law was due to his own negligence; otherwise
the petition for relief can be used to revive the
right to appeal which have been lost thru
inexcusable negligence. 19
Petitioner also insists that he has meritorious
defense. He cites the Family Code which
provides that in actions for annulment of
marriage or legal separation, the prosecuting
officer should intervene for the state because the
law "looks with disfavor upon the haphazard
declaration of annulment of marriages by
default." He contends that when he failed to
appear at the scheduled hearings, the trial court
should have ordered the prosecuting officer to
intervene for the state and inquire as to the
reason for his non-appearance. 20
Articles 48 and 60 of the Family Code read as
follows:jgc:chanrobles.com.ph
"ARTICLE 48. In all cases of annulment or
declaration of absolute nullity of marriage, the
Court shall order the prosecution attorney or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between
the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of
judgment."cralaw virtua1aw library
x       x       x
"ARTICLE 60. No decree of legal separation
25

shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the
prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the
parties and to take care that the evidence is not
fabricated or suppressed." 21
A grant of annulment of marriage or legal
separation by default is fraught with the danger
of collusion. 22 Hence, in all cases for
annulment, declaration of nullity of marriage
and legal separation, the prosecuting attorney or
fiscal is ordered to appear on behalf of the state
for the purpose of preventing any collusion
between the parties and to take care that their
evidence is not fabricated or suppressed. If the
defendant spouse fails to answer the complaint,
the court cannot declare him or her in default but
instead, should order the prosecuting attorney to
determine if collusion exists between parties. 23
The prosecuting attorney or fiscal may oppose
the application for legal separation or annulment
through the presentation of his own evidence, if
in his opinion, the proof adduced is dubious and
fabricated. 24 Our Constitution is committed to
the policy of strengthening the family as a basic
social institution. 25 Our family law is based on
the policy that marriage is not a mere contract,
but a social institution in which the state is
vitally interested. The state can find no stronger
anchor than on good, solid and happy families.
The break up of families weakens our social and
moral fabric and, hence, their preservation is not
the concern alone of the family members.
The facts in the case at bar do not call for the
strict application of Articles 48 and 60 of the
Family Code. For one, petitioner was not
declared in default by the trial court for failure to
answer. Petitioner filed his answer to the
complaint and contested the cause of action
alleged by private Respondent. He actively
participated in the proceedings below by filing
several pleadings and cross-examining the
witnesses of private Respondent. It is crystal
clear that every stage of the litigation was
characterized by a no-holds barred contest and
not by collusion.
FAMILY (WEEK 5) | CHAVEZ
The role of the prosecuting attorney or fiscal in
annulment of marriage and legal separation
proceedings is to determine whether collusion
exists between the parties and to take care that
the evidence is not suppressed or fabricated.
Petitioner’s vehement opposition to the
annulment proceedings negates the conclusion
that collusion existed between the parties. There
is no allegation by the petitioner that evidence
was suppressed or fabricated by any of the
parties. Under these circumstances, we are
convinced that the non-intervention of a
prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the
validity of the proceedings in the trial court.
Petitioner also refutes the testimonies of private
respondent’s witnesses, particularly Dr. Samuel
Wiley and Ms. Adelita Prieto, as biased,
incredible and hearsay. Petitioner alleges that if
he were able to present his evidence, he could
have testified that he was not psychologically
incapacitated at the time of the marriage as
indicated by the fact that during their first ten
years, he and private respondent lived together
with their children as one normal and happy
family, that he continued supporting his family
even after he left the conjugal dwelling and that
his work as owner and operator of a radio and
television corporation places him in the public
eye and makes him a good subject for malicious
gossip linking him with various women. These
facts, according to petitioner, should disprove
the ground for annulment of his marriage to
petitioner.
Suffice it to state that the finding of the trial
court as to the existence or non-existence of
petitioner’s psychological incapacity at the time
of the marriage is final and binding on us. 26
Petitioner has not sufficiently shown that the
trial court’s factual findings and evaluation of
the testimonies of private respondent’s witnesses
vis-a-vis petitioner’s defenses are clearly and
manifestly erroneous. 27
IN VIEW WHEREOF, the petition is denied and
the decision dated July 29, 1994 of the Court of
Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.
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u. What is stipulation of facts?
- US Legal: refers to an agreement
on the facts of a case for the
purpose of simplifying the issues
involved and to guide the court
properly in making a judicious
decision.
v. Discuss Articles 49 to 54 of the Family
Code.
Art. 49. During the pendency of the action
and in the absence of adequate provisions in a
written agreement between the spouses, the
Court shall provide for the support of the
spouses and the custody and support of their
common children. The Court shall give
paramount consideration to the moral and
material welfare of said children and their
choice of the parent with whom they wish to
remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of
the other parent. (n)
Art. 50. The effects provided for by
paragraphs (2), (3), (4) and (5) of Article 43
and by Article 44 shall also apply in the
proper cases to marriages which are declared
ab initio or annulled by final judgment under
Articles 40 and 45.
The final judgment in such cases shall
provide for the liquidation, partition and
distribution of the properties of the spouses,
the custody and support of the common
children, and the delivery of third
presumptive legitimes, unless such matters
had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the
absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the
lot on which it is situated, shall be
adjudicated in accordance with the provisions
of Articles 102 and 129.
FAMILY (WEEK 5) | CHAVEZ
Art. 51. In said partition, the value of the
presumptive legitimes of all common
children, computed as of the date of the final
judgment of the trial court, shall be delivered
in cash, property or sound securities, unless
the parties, by mutual agreement judicially
approved, had already provided for such
matters.
The children or their guardian or the trustee
of their property may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes
herein prescribed shall in no way prejudice
the ultimate successional rights of the
children accruing upon the death of either of
both of the parents; but the value of the
properties already received under the decree
of annulment or absolute nullity shall be
considered as advances on their legitime. (n)
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 children’s
presumptive legitimes shall be recorded in the
appropriate civil registry and registries of
property; otherwise, the same shall not affect
third persons. (n)
Art. 53. Either of the former spouses may
marry again after compliance with the
requirements of the immediately preceding
Article; otherwise, the subsequent marriage
shall be null and void.
Art. 54. Children conceived or born before
the judgment of annulment or absolute
nullity of the marriage under Article 36 has
become final and executory shall be
considered legitimate. Children conceived or
born of the subsequent marriage under
Article 53 shall likewise be legitimate.
w. What are presumptive legitimes?
- The presumptive legitimes of all
common children shall be
delivered in (a) cash, (b) property
or (c) sound securities. Exception:
27
 FAMILY (WEEK 5) | CHAVEZ

If these matters had already been

provided in a mutual agreement of
the parties concerned and approved
by a competent court.
- The legitimes shall be considered as
advance inheritance, if upon the
death of either or both parents, the
children whose ultimate
successional rights shall not be
prejudiced, have still rights or
properties to inherit from their
deceased parents.
- Legitimes, as the Civil Code defines
it, “is that part of the testator’s
property which he cannot dispose of
because the law has reserved it for
certain heirs, who are therefore
called compulsory heirs.” (Art. 886)

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