Assignment No. 6 - Civrev Perfam

Assignment No.
6 – CivRev PerFam
A.M. NO. 02-11-11-SC RULE ON LEGAL SEPARATION
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 02-11-11-SC March 4, 2003
RE: PROPOSED RULE ON LEGAL SEPARATION
RESOLUTION
Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting
for this Court's consideration and approval the Proposed Rule on Legal Separation, the Court
Resolved to APPROVED the same.
The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general
circulation not later than March 7, 2003
March 4, 2003
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of
the Philippines.
The Rules of Court shall apply suppletorily.
Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed
only by the husband or the wife, as the case may be within five years from the time of the
occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
(b) Physical violence or moral pressure to compel the petitioner to change religious
or political affiliation;
(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a

child of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
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Assignment No. 6 – CivRev PerFam
(d) Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous marriage, whether in

or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without justifiable cause for more than
one year.
(b) Contents and form. - The petition for legal separation shall:
(1) Allege the complete facts constituting the cause of action.
(2) State the names and ages of the common children of the parties, specify the
regime governing their property relations, the properties involved, and creditors, if
any. If there is no adequate provision in a written agreement between the parties,
the petitioner may apply for a provisional order for spousal support, custody and
support of common children, visitation rights, administration of community or
conjugal property, and other similar matters requiring urgent action,
(3) Be verified and accompanied by a certification against forum shopping. The

verification and certification must be personally signed by the petitioner. No petition
may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a
foreign country, the verification and certification against forum shopping shall be
authenticated by the duly authorized officer of the Philippine embassy or legation,
consul general, consul or vice-consul or consular agent in said country
(4) Be filed in six copies. The petitioner shall, within five days from such filing,
furnish a copy of the petition to the City or Provincial Prosecutor and the creditors, if
any, and submit to the court proof of such service within the same period.
Failure to comply with the preceding requirements may be a ground for

immediate dismissal of the petition.
(c) Venue. - The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of
filing "or in The case of a non-resident respondent, where he may be found in the
Philippines, at the election of the petitioner.
Section 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court
and by the following rules:
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(a) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave
of court, be effected upon him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such place as the court may
order. In addition, a copy of the summons shall be served on respondent at his last known
address by registered mail or by any other means the court may deem sufficient.
(b) The summons to be published shall be contained in an order of the court with the
following data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal
grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to
answer within thirty days from the last issue of publication.
Section 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any
other ground that might warrant a dismissal of the case may be raised as an affirmative defense in
an answer.
Section 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of
summons, or within thirty days from the last issue of publication in case of service of summons by
publication. The answer must be verified by respondent himself and not by counsel or attorney-in-
fact.
(b) If the respondent fails to file an answer, the court shall not declare him in default.
(c) Where no answer is filed/or if the answer does not tender an issue the court shall order
the public prosecutor to investigate whether collusion exists between the parties.
Section 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the
court order mentioned in paragraph (c) of the preceeding section, the public prosecutor shall submit
a report to the court on whether the parties are in collusion and serve copies on the parties and their
respective counsels, if any.
(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his
report. The parties shall file their respective comments on the finding of collusion within ten
days from receipt of copy of the report. The court shall set the report for hearing and if
convinced that parties are in collusion,-it shall dismiss the petition.
(c) If the public prosecutor reports that no collusion exists, the court shall set the case for
pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.
Section 7. Social Worker. - The court may require a social worker to conduct a case study and to
submit the corresponding report at least three days before the pre-trial. The court may also require a
case study at any stage of the case whenever necessary,
Section 8. Pre-trial. -
(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion or motu proprio, the court shall
set the pre-trial after the last pleading has been served and filed, or upon receipt of the
report of the public prosecutor that no collusion exists between the parties on a date not
earlier than six months from date of the filing of the petition.
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(b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure the receipt thereof by the adverse
party at least three days before the date of pre-trial.
(2) The notice shall be served separately on the parties and their respective
counsels as well as on the public prosecutor. It shall be their duty to appear
personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an
answer. In case of summons by publication and the respondent failed to file his
answer, notice of pre-trial shall be sent to respondent at his last known address.
Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:
(1) A statement of the willingness of the parties to enter into agreements as may be allowed
by law, indicating the desired terms thereof;
(2) A concise statement of their respective claims together with the applicable laws and
authorities;
(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and
legal issues;
(4) All the evidence to be presented, including expert opinion, if any, briefly stating or
describing the nature and purpose thereof;
(5) The number and names of the witnesses and their respective affidavits; and
(6) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial under the succeeding section.
Section 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally,
the case shall be dismissed unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner.
(2) If the respondent filed his answer but fails to appear, the court shall proceed with the
pre-trial and require the public prosecutor to investigate the non-appearance of the
respondent and submit within fifteen days a report to the court stating whether his non-
appearance is due to any collusion between the parties/ If there is no collusion the court
shall require the public prosecutor to intervene for the State during the trial on the.merits to
prevent suppression or fabrication of evidence.
Section 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a
mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.
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The mediator shall render a report within one month from referral which, for good reasons, the
court may extend for a period not exceeding one month.
In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider the advisability of receiving expert testimony and
such other matters as may aid in the prompt disposition of the petition.
Section 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up
in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except
as to the ground of legal separation, the agreements or admissions made by the parties on any of
the matters considered, including any provisional order that may be necessary or agreed upon by
the parties.
(b) Should the action proceed to trial, the order shall contain a recital of the following:
(1) Facts undisputed, admitted, and those which need not be proved subject to
Section 13 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be
presented;
(4) Names of witnesses who will be presented and their testimonies in the form of
affidavits; and
(5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a directive to the public prosecutor to appear for
the State and take steps to prevent collusion between the parties at any stage of the
proceedings and fabrication or suppression of evidence during the trial on the merits.
(c) The parties shall not be allowed to raise issues or present witnesses and evidence other
than those stated in the pre-trial order. The order shall control the trial of the case unless
modified by the court to prevent manifest injustice.
(d) The parties shall have five days from receipt of the pre-trial order to propose corrections
or modifications.
Section 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters,
such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground lor legal separation;
(4) Future support;

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(5) The jurisdiction of courts; and
(6) Future legitime.
Section 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(b) The grounds for legal separation must be proved. No judgment on the pleadings,
summary judgment, or confession of judgment shall be allowed.
(c) The court may order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case. Such an order may be made if
the court determines on the record that requiring a party to testify in open court would not
enhance the ascertainment of truth; would cause to the party psychological harm or inability
to effectively communicate due to embarrassment, fear, or timidity; would violate the party's
right to privacy; or would be offensive to decency
(d) No copy shall be taken nor any examination or perusal of the records of the case or
parts thereof be made by any person other than a party or counsel of a party, except by
order of the court.
Section 15. Memoranda. - The court may require the parties and the public prosecutor to file their
respective memoranda in support of their claims within fifteen days from the date the trial is
terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of
the period herein provided, the case will be considered submitted for decision, with or without the
memoranda.
Section 16. Decision. - (a) The court shall deny the petition on any of the following grounds:
(1) The aggrieved party has condoned the offense or act complained of or has
consented to the commission of the offense or act complained of;
(2) There is connivance in the commission of the offense-or act constituting the
ground for legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the decree of legal separation;
or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it shall declare therein that the
Decree of Legal Separation shall be issued by the court only after full compliance with
liquidation under the Family Code.
However, in the absence of any property of.the parties, the court shall forthwith issue
a Decree of Legal Separation which shall be registered in the Civil Registry where the
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marriage was recorded and in the Civil Registry where the Family Court granting the legal
separation is located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each other but the marriage
bond is not severed;
(2) The obligation of mutual support between the spouses ceases; and
(3) The offending spouse is disqualified from inheriting from the innocent spouse by
intestate succession, and provisions in favor of the offending spouse made in the
will of the innocent spouse are revoked by operation of law.
(d) The parties, including the Solicitor General and the public prosecutor, shall be served
with copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall also be
published once in a newspaper of general circulation.
Section 17. Appeal. -
(a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.
(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon
the adverse parties.
Section 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon
entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family Court, on motion of either party,
shall proceed with the liquidation, partition and distribution of the properties of the spouses,
including custody and support of common children, under the Family Code unless such matters had
been adjudicated in previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal
Separation after:
(1) registration of the entry of judgment granting the petition tor legal separation in
the Civil Registry where the marriage was celebrated and in the Civil Registry where
the Family Court is located; and
(2) registration of the approved partition and distribution of the properties of the
spouses, in the proper Register of Deeds where the real properties are located.
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(b) The court shall quote in the Decree the dispositive portion of the judgment entered and
attach to the Decree the approved deed of partition.
Section 20. Registration and publication of the Decree of Legal Separation; decree as best
evidence. -
(a) Registration of decree.-The prevailing party shall cause the registration of the Decree in
the Civil Registry where the marriage was registered, in the Civil Registry of the place where
the Family Court is situated, and in the National Census and Statistics Office. He shall
report to the court compliance with this requirement within thirty days iron receipt of the copy
of the Decree.
(b) Publication of decree.-- In case service of summons was made by publication, the
parties shall cause the publication of the Decree once in a newspaper of general circulation.
(c) Best evidence.-The registered Decree shall be the best evidence to prove the legal
separation of the parties and shall serve as notice to third persons concerning the properties
of petitioner and respondent.
Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a
party dies at any stage of me proceedings before the entry of judgment, the court shall order the
case closed and terminated without prejudice to the settlement of estate proper proceedings in the
regular courts.
(b) If the party dies after the entry of judgment, the same shall be binding upon the parties
and their successors in interest in the settlement of the estate in the regular courts.
Section 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision
granting the petition for legal separation has become final, the innocent spouse may file a petition
under oath the same proceeding for legal separation to revoke the donations in favor of the
offending spouse.
(b)The revocation of the donations shall be recorded in the Register of Deeds of Deeds in
the places where the properties are located.
(c)Alienations, liens, and encumbrances registered in good faith. before the recording of the
petition for revocation in the registries of property shall be respected.
(d)After the issuance of the Decree of Legal Separation, the innocent spouse may revoke
the designation of the offending spouse as a beneficiary in any insurance policy even if such
designation be stipulated as irrevocable. The revocation or change shall take effect upon
written notification thereof to the insurer.
Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation under
oath, duly signed by the spouses, may be filed in the same proceeding for legal separation.
(b) If the reconciliation occurred while the proceeding for legal separation is pending, the
court shall immediately issue an order terminating the proceeding.
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(c) If the reconciliation occurred after the rendition of the judgment granting the petition for
legal separation but before the issuance of the Decree, the spouses shall express in their
manifestation whether or not they agree to revive the former regime of their property
relations or choose a new regime.
The court shall immediately issue a Decree of Reconciliation declaring that the legal
separation proceeding is set aside and specifying the regime of property relations under
which the spouses shall be covered.
(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper
motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside
but the separation of property and any forfeiture of the share of the guilty spouse already
effected subsists, unless the spouses have agreed to revive their former regime of property
relations or adopt a new regime.
(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a
regime of property relations different from that which they had prior to the filing of the
petition for legal separation, the spouses shall comply with Section 24 hereof.
(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage
and the Decree had been registered.
Section 24. Revival of property regime or adoption of another. -
(a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a
verified motion for revival of regime of property relations or the adoption of another regime
of property relations in the same proceeding for legal separation attaching to said motion
their agreement for the approval of the court.
(b) The agreement which shall be verified shall specify the following:
(1) The properties to be contributed to the restored or new regime;
(2) Those to be retained as separate properties of each spouse; and
(3) The names of all their known creditors, their addresses, and the amounts owing
to each.
(c) The creditors shall be furnished with copies of the motion and the agreement.
(d) The court shall require the spouses to cause the publication of their verified motion for
two consecutive weeks in a newspaper of general circulation.
(e) After due hearing, and the court decides to grant the motion, it shall issue an order
directing the parties to record the order in the proper registries of property within thirty days
from receipt of a copy of the order and submit proof of compliance within the same period.
Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.
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[50]
Panganiban September 9, 1933
JOSE R. PAÑGANIBAN, complainant,
vs.
ELIAS BORROMEO, respondent.
ATTORNEYS-AT-LAW ; GROUNDS FOR DISBARMENT; MISCONDUCT AS NOTARY PUBLIC.

—The court has the right to discipline an attorney for misconduct as a notary public, e. g., for taking an
acknowledgment to a contract between a husband and a wife which sanctioned an illicit and immoral
purpose.
ORIGINAL ACTION in the Supreme Court. Disbarment proceedings.
The Respondent in his own behalf.

Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:
These proceedings looking to the disbarment of the respondent attorney are before us on the
representations of the Solicitor-General that the respondent appear and show cause, if any he has,
why he should not be proceeded against for professional malpractice. The respondent admits that,
in his capacity as notary public he legalized the document which is the basis of the complaint
against him, and that the document contains provisions contrary to law, morals and good customs,
but by way of defense disclaims any previous knowledge of the illegal character of the document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a
contract before the notary public Elias Borromeo, who was at that time a regularly admitted member
of the Philippine Bar. The contract in question had been prepared by the municipal secretary of
Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at
lease, some knowledge of its contents, although he may not have been fully informed because of a
difference in dialect. The contract in substance purported to formulate an agreement between the
husband and the wife which permitted the husband to take unto himself a concubine and the wife to
live in adulterous relationship with another man, without opposition from either one of them.
Two questions are suggested by the record. The first concerns the points of whether or not the
contract sanctioned an illicit and immoral purpose. The second concerns the point, on the
supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be
disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal
Code, as modified by Act No. 1773 was in force. Conceding, however, that the more liberal
provisions of the Revised Penal Code should be given application, it is herein provided that the
consent or pardon given by the offended party constitutes a bar to prosecution for adultery or
concubinage. In this instance, if the spouses should retain their present frame of mind, no
prosecution of either one by the other could be expected. Nevertheless, we think it far from the
purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the
qualification that prosecution cannot be instituted if the offended party consent to the act or pardon
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the offender. This is a matter of future contingency and is not matter for legalization in wanton
disregard of good morals. We hold the contract to contain provisions contrary to law, morals and
public order, and as a consequence not judicially recognizable.
Passing to the second question, we think there can be no question as to the right of the court to
discipline an attorney who, in his capacity as notary public, has been guilty of misconduct. To the
office of notary public there is not attached such importance under present conditions as under the
Spanish administration. Even so, the notary public exercise duties calling for carefulness and
faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to
take part in no illegal enterprise. The notary public is usually a person who has been admitted to the
practice of law, and such, in the commingling of his duties as notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who performs an act as a notary
public of a disgraceful or immoral character may be held to account by the court even to the extent
of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115
N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell
[1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la
Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken
into consideration (1) that the attorney may not have realized the full purport of the document to
which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the
commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in
this case to exercise clemency and to confine our discipline of the respondent to severe censure. So
ordered.
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[2]
G.R. No. L-38672 1 October 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ALFONSO GUINUCUD and ROSARIO TAGAYUN, defendants-appellants.
CRIMINAL LAW; ADULTERY; HUSBAND'S CONSENT.—The conduct of the husband, as

shown by the evidence in this case, warrants the inference that he consented to, and acquiesced in the
adulterous relations existing between the accused and he is, therefore, not authorized by law to institute a
criminal proceeding. His consent to the offense before it was committed was void, but his tolerance and
acquiescence in the offense after it was committed demonstrate that it is a hypocritical pretense for him to
appear in court as the "offended party".
APPEAL from a judgment of the Court of First Instance of Isabela. De la Costa, J.
BUTTE, J.:
This is an appeal from a decision of the Court of First Instance of Isabela, convicting the appellants
of the crime of adultery. The prosecution was instituted by the complaint of the husband of Rosario
Tagayun, named Ramon Palattao.
Upon arraignment, the accused pleaded not guilty but on the hearing, admitted the facts alleged in
the information but presented evidence to prove that Ramon Palattao consented to the adultery,
which fact, if established, bars any prosecution under article 344 of the Revised Penal Code. The
pertinent paragraphs of said article are as follows:
ART. 344. Prosecution of all crimes of adultery, concubinage, seduction, abduction, rape

and acts of lasciviousness. — The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty
parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the
offenders.
It appears from the evidence in this case that the husband, Ramon Palattao, in April 1930,
abandoned and deserted his wife, Rosario Tagayun, then aged 21, and their child. After that
abandonment, Rosario lived with her mother but made repeated efforts to win back her husband.
She went to the justice of the peace of San Pablo, Mariano Castañeda, who testified that he called
Ramon and endeavored to persuade Ramon to take his wife back, but Ramon refused. Thereafter,
at the request of the mother of Rosario, the barrio lieutenant, Mariano Tumaliuan, took Rosario and
her child to Ramon's house but she was refused admission by the said Ramon. Thereafter, on July
3, 1930, the husband, Ramon, induced his wife, Rosario, to sign the document which appears in the
record as Exhibit 1. He brought the document in duplicate to the house of Rosario's mother where
both of them signed both copies, he keeping the original and leaving her the carbon copy. Exhibit 1
is as follows:
COUPLE'S AGREEMENT
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We, Ramon Palattao and Rosario Tagayun, man and wife, enter into the following
agreement:
That in view of the fact that, I, Ramon Palattao, the man, cannot stay and live with the
parent of Rosario Tagayun in barrio Lattu; and that in view of the fact that I, Rosario
Tagayun, the woman, cannot live with the parent of Ramon Palattao in barrio Auitan;
We mutually agree by this present to separate from each other and that Ramon Palattao
can and I gave him the privilege to love or marry another woman; so also Rosario Tagayun
can accept or be married to another man;
We also agree that, as to the baby Leslie who is our child, it is our right to have him by turn
and we are bound to support him jointly;
Finally we state also that each of us has to find his or her means of existence and neither of
us has the right to bother the other as to his or her livelihood;
In witness whereof we sign at barrio Lattu in the municipality of San Pablo, province of
Isabela, this 3rd day of July, 1930.
(Sgd.) ROSARIO TAGAYUN (Sgd.) RAMON PALATTAO
At the time said Exhibit 1 was signed, Rosario and her child were living with Rosario's mother and
there is no evidence of any misconduct on her part at that time or that she contemplated any illicit
relations with any other man. On the other hand, we are convinced from the conduct of the husband
Ramon that he solicited the signature of Rosario to said agreement in his own interest and because
he desired to have "the privilege to love or to marry another woman". At the trial of this case, he
denied that the signature in Exhibit 1 was his signature. This was a palpable falsehood as a
comparison with his signatures on other documents in the files plainly shows. He even had the
effrontery to deny his signature to a motion for continuance which he filed in the justice of the peace
court.
ISSUE: W/N Accused appellants are guilty of adultery
Held: negative
He admitted on cross-examination that, for more than a year before he filed the complaint in this
case *after more than one year despite the fact that*, he knew that his wife Rosario and her
coaccused Alfonso were living together in the same house. During all that time he took no action
whatever to vindicate the honor or his name or to resent the open offense to the integrity of his
home, doubtless, because he felt bound by the alleged agreement to give his consent to Rosario's
conduct or because he expected her to reciprocate. As this court stated in the case of People vs.
Sensano and Ramos (p. 73, ante), he was "assuming a mere pose when he signed the complaint as
the 'offended spouse," and his conduct as shown by the evidence in this case warrants the inference
that he consented to, and acquiesced in, the adulterous relations existing between the accused, and
he is, therefore, not authorized by law to institute this criminal proceeding.
The agreement above referred to (Exhibit 1) is void in law. (Cf. People vs. Tolentino, G.R. No.
34145, promulgated October 22, 1931.) 2
Page 14 of 100
Whilst the agreement, Exhibit 1, is void in law, it is nevertheless competent evidence to explain the
husband's inaction after he knew of his wife's living with the coaccused and to show that he
acquiesced in her conduct. The expression "if he shall have consented" in article 344 of the Revised
Penal Code, which bars the "offended" husband from instituting a prosecution, has no reference to
any consent or agreement prior to the commission of the offense but relates to an express or
implied acquiescence subsequent to the offense. This consent or acquiescence need not be
express but may be inferred from the conduct or the long continued inaction of the husband after
learning of the offense. The husband who is truly "offended", within the meaning of the statute, will
not sit passively by and allow his name and the honor of his family to be flagrantly sullied by the
notorious adultery of his wife. Apart from that, the fact that he abandoned and deserted his wife and
child, in spite of all her efforts to maintain their home intact, shows a callous indifference to every
moral duty imposed upon him as her husband and the father of their child. In this case, the very
thing happened which he might have foreseen and probably did foresee when he abandoned his
wife and deceived her into believing that she was free when she signed the said agreement a year
and a half before the offense was committed. His consent to the offense before it was committed
was void but his tolerance of and acquiescence in the offense after it was committed demonstrate
that it is a hypocritical pretense for him now to appear in court as the "offended party" and bar his
right to prosecute his wife.1awphil.net
Very apt in this connection are the following paragraphs in Groizard's commentaries on similar
provisions in the Codigo Penal of Spain:
A su vez, transigir un marido con su deshonor, consentir el adulterio y luego ir a los

tribunales querellandose de la mujer y de su complice, es ser dos veces indigno: la primera,
al conocer y no vindicar la ofensa recibida, y la segunda, haciendola publica, con daño de
toda la familia, despues de haber demostrado que personalmente le afectaba en poco.
(Page 48, Groizard's Codigo Penal, Vol. 5.)
A las limitaciones de que acabamos de hablar, nosotros añadiriamos otra que encontramos
establecida en algunos codigos que en las concordancias figuran. Fijariamos un plazo, mas
o menos largo, para la presentacion de la querella, pasado el cual, negariamos al marido el
derecho de producirla. El marido que tiene conocimiento de la violacion de la fe conyugal, y
deja pasar cuatro o sees meses sin acudir a los tribunales demandado reparacion de las
injurias, debe suponerse que tacitamente las ha perdonado. Espacio ha tenido suficiente,
cuando la herida chorreaba sangre, para ejercer el derecho que la ley le daba; si no lo hizo
en un termino prudencial, no es justo que indefinidamente tenga a la mujer bajo la amenaza
de un castigo vergonzoso que cohiba perpetuamente su espiritu, impidiendo su
arrepentimiento y dificultando la conciliacion conyugal, y con ella la paz de la familia. (Page
49, Groizard's Codigo Penal, Vol. 5.)
The judgment below is reversed with costs de oficio.
Page 15 of 100
[3]
G.R. No. 82606 December 18, 1992
PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and
CONSING), respondents.
Judgments; Omission or mistake in dispositive portion of decision; Failure of petitioner’s counsel to

seek rectification; Technicality should not prevail over considerations of substantive justice.—The dispositive
portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial
separation of conjugal property although it was extensively discussed in the body of the decision. The drafting
of the decision was indeed not exactly careful. The petitioner’s counsel, noting this, should have taken
immediate steps for the rectification of the omission so that the ruling expressed in the text of the decision
could have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely
technical issue. Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justice. After all, the technical defect is not insuperable.We have said time and
again that where there is an ambiguity caused by an omission or mistake in the dispositive portion of the
decision, this Court may clarify such ambiguity by an amendment even after the judgment has become final.
In doing so, the Court may resort to the pleadings filed by the parties and the findings of fact and the
conclusions of law expressed in the text or body of the decision.
Domestic relations; Judicial separation of conjugal property; Family Code; Abandonment and failure

to comply with family obligations.—Abandonment implies a departure by one spouse with the avowed intent
never to return, followed by prolonged absence without just cause, and without in the meantime providing in
the least for one’s family although able to do so. There must be absolute cessation of marital relations, duties
and rights, with the intention of perpetual separation. This idea is clearly expressed in the above-quoted
provision, which states that “a spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning.” The record shows that as early as 1942, the private
respondent had already rejected the petitioner, whom he denied admission to their conjugal home in
Dumaguete City when she returned from Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming their conjugal relationship. Moreover,
beginning 1968 until the final determination by this Court of the action for support in 1988, the private
respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled
with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment
as a ground for the judicial separation of their conjugal property. In addition, the petitioner may also invoke
the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with
his obligations to the family as husband or parent. Apart from refusing to admit his lawful wife to their
conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many
children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the
actions against him for support and later for separation of the conjugal property, in which actions,
significantly, he even denied being married to her. The private respondent has not established any just cause
for his refusal to comply with his obligations to his wife as a dutiful husband.
Same; Same; Same.—The amendments introduced in the Family Code are applicable to the case before
us although they became effective only on August 3, 1988. As we held in Ramirez vs. Court of Appeals: The
greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal,
will dispose of a question according to the law prevailing at the time of such disposition, and not according to
the law prevailing at the time of rendition of the appealed judgment. The court will therefore reverse a
judgment which was correct at the time it was originally rendered where, by statute, there has been an
Page 16 of 100
intermediate change in the law which renders such judgment erroneous at the time the case was finally
disposed of on appeal. The order of judicial separation of the properties in question is based on the finding of
both the trial and respondent courts that the private respondent is indeed their real owner. It is these properties
that should now be divided between him and the petitioner, on the assumption that they were acquired during
coverture and so belong to the spouses half and half. As the private respondent is a Chinese citizen, the
division must include such properties properly belonging to the conjugal partnership as may have been
registered in the name of other persons in violation of the AntiDummy Law.
PETITION to review the decision of the Court of Appeals.
CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered
fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he
begot a daughter, Monina Jo. The other women and their respective offspring are not parties of
these case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property,
docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and
docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee,
Jr. rendered an extensive decision, the dispositive portion of which read:
WHEREFORE, in view of all the foregoing arguments and considerations, this court
hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho
Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded
wife and the defendant is hereby ordered to give a monthly support of P500.00 to
the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and
to give to the plaintiff the amount of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live separately from the defendant
being entitled under the law to separate maintenance being the innocent spouse
and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears
and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees.
As will be noticed, there was a definite disposition of the complaint for support but none of the
complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the
complaint for support. 1 The complaint for judicial separation of conjugal property was dismissed for
lack of a cause of action and on the ground that separation by agreement was not covered by Article
178 of the Civil Code.
When their motions for reconsideration were denied, both parties came to this Court for relief. The
private respondent's petition for review on certiorari was dismissed for tardiness in our resolution
dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and
Prima and the obligation of the former to support her and her daughter.
This petition deals only with the complaint for judicial separation of conjugal property.
Page 17 of 100
It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of
conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b)
no such separation was decreed by the trial court in the dispositive portion of its decision.
The private respondent contends that the decision of the trial court can longer be reviewed at this
time because it has a long since become final and executory. As the decretal portion clearly made
no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The
petitioner should have called the attention of the trial court to the omission so that the proper
rectification could be made on time. Not having done so, she is now concluded by the said decision,
which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the
decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made
in the penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in question are considered
properties of Jose Jo, the defendant in this case, subject to separation of property
under Article 178, third paragraph of the Civil Code, which is subject of separate
proceedings as enunciated herein.
The petitioner says she believed this to be disposition enough and so did not feel it was necessary
for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was
only when the respondent court observed that there was no dispositive portion regarding that case
and so ordered its dismissal that she found it necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on
the complaint for judicial separation of conjugal property although it was extensively discussed in the
body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's
counsel, noting this, should have taken immediate steps for the rectification for the omission so that
the ruling expressed in the text of the decision could have been embodied in the decretal portion.
Such alertness could have avoided this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justive. After all, the technical defect is not insuperable. We have said
time and again that where there is an ambiguity caused by an omission or a mistake in the
dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even
after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the
parties and the findings of fact and the conclusions of law expressed in the text or body of the
decision. 3
The trial court made definite findings on the complaint for judicial separation of conjugal property,
holding that the petitioner and the private respondent were legally married and that the properties
mentioned by the petitioner were acquired by Jo during their marriage although they were registered
in the name of the apparent dummy.
There is no question therefore that the penultimate paragraph of the decision of the trial court was a
ruling based upon such findings and so should have been embodied in the dispositive portion. The
Page 18 of 100
respondent court should have made the necessary modification instead of dismissing Civil Case No.
51 and thus upholding mere form over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby make such
modification.
ISSUE: W/N A JUDICIAL SEPARATION OF PROPERTY MAY BE DECREED
Held: Affirmative. The basis of which is the abandonment; and not the agreement.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the separation of the parties was
due to their agreement and not because of abandonment. The respondent court relied mainly on the
testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo
were living together "because that was our agreement." It held that a agreement to live separately
without just cause was void under Article 221 of the Civil Code and could not sustain any claim of
abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the
petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal
partnership of property would be terminated.
The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of
the Civil Code. She submits that the agreement between her and the private respondent was for her
to temporarily live with her parents during the initial period of her pregnancy and for him to visit and
support her. They never agreed to separate permanently. And even if they did, this arrangement
was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to
accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without judicial approval,
shall not affect the conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just cause for at least one year,
she may petition the court for a receivership, or administration by her of the conjugal
partnership property or separation of property.
The above-quoted provision has been superseded by Article 128 of the Family Code, which states:
Art. 128. If a spouse without just cause abandons the other or fails to comply with
his or her obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, of for authority to be the sole
administrator of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
Page 19 of 100
The obligations to the family mentioned in the preceding paragraph refer to martial,
parental or property relations.
A spouse is deemed to have abondoned the other when he or she has left the
conjugal dwelling without any intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has failed within the same period
to give any information as to his or her whereabouts shall be prima facie presumed
to have no intention of returning to the conjugal dwelling.
Under this provision, the aggrieved spouse may petition for judicial separation on either of these
grounds:
1. Abondonment by a spouse of the other without just cause; and
2. Failure of one spouse to comply with his or her obligations to the family without
just cause, even if she said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed intent never to return, followed by
prolonged absence without just cause, and without in the meantime providing in the least for one's
family although able to do so. 5 There must be absolute cessation of marital relations, duties and
rights, with the intention of perpetual separation. 6 This idea is clearly expressed in the above-
quoted provision, which states that "a spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without any intention of returning."
The record shows that as early as 1942, the private respondent had already rejected the petitioner,
whom he denied admission to their conjugal home in Dumaguete City when she returned from
Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no
intention of resuming their conjugal relationship. Moreover, beginning 1968 until the determination
by this Court of the action for support in 1988, the private respondent refused to give financial
support to the petitioner. The physical separation of the parties, coupled with the refusal by the
private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground
for the judicial separation of their conjugal property.
In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is
that he has failed without just cause to comply with his obligations to the family as husband or
parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has
freely admitted to cohabiting with other women and siring many children by them. It was his refusal
to provide for the petitioner and their daughter that prompted her to file the actions against him for
support and later for separation of the conjugal property, in which actions, significantly, he even
denied being married to her. The private respondent has not established any just cause for his
refusal to comply with his obligations to his wife as dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows:
Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have been separated in fact for at
least one year and reconciliation is highly improbable.
Page 20 of 100
The amendments introduced in the Family Code are applicable to the case before us although they
became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7
The greater weight of authority is inclined to the view that an appellate court, in
reviewing a judgment on appeal, will dispose of a question according to the law
prevailing at the term of such disposition, and not according to the law prevailing at
the time of rendition of the appealed judgement. The court will therefore reverse a
judgement which was correct at the time it was originally rendered where, by
statute, there has been an intermediate change in the law which renders such
judgement erroneous at the time the case was finally disposed of on appeal.
The order of judicial separation of the properties in question is based on the finding of both the trial
and respondent courts that the private respondent is indeed their real owner. It is these properties
that should now be divided between him and the petitioner, on the assumption that they were
acquired during coverture and so belong to the spouses half and half. As the private respondent is a
Chinese citizen, the division must include such properties properly belonging to the conjugal
partnership as may have been registered in the name of other persons in violation of the Anti-
Dummy Law.
The past has caught up with the private respondent. After his extramarital flings and a succession of
illegitimate children, he must now make an accounting to his lawful wife of the properties he denied
her despite his promise to their of his eternal love and care.
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is
MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the
conjugal property of the petitioner and the private respondent is hereby ordered divided between
them, share and share alike. This division shall be implemented by the trial court after determination
of all the properties pertaining to the said conjugal partnership, including those that may have been
illegally registered in the name of the persons.
SO ORDERED.
Page 21 of 100
[4]
G.R. No. L-19565 January 30, 1968
ESTRELLA DE LA CRUZ, plaintiff-appellee,
vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Civil Law; Separation of property; Abandonment of spouse; Concept of abandonment as ground for

separation of property.—The word "abandonment", when referring to the act of one consort of leaving the
other, is "the act of the husband or the wife who leaves his or her consort wilfully, and with an intention of
causing perpetual separation" (Gay v. State, 31 S.E. 569). Giving to the word "abandoned", as used in article
178 of the new Civil Code, the meaning drawn from the definition above reproduced, it seems rather clear that
to constitute abandonment of the wife by the husband, there must be absolute cessation of marital relations and
duties and rights, with the intention of perpetual separation. Therefore, if there is only physical separation
between the spouses (and nothing more), engendered by the husband's leaving the conjugal abode, but the
husband continues to manage the conjugal properties with the same zeal, industry, and efficiency as he did
prior to the separation, and religiously gives support to his wife and children, the wife's petition for separation
of property can not be granted.
Same; Attorney's fee; Award therefore proper where husband has given cause for his wife to seek
redress in courts.—Where the husband, by leaving the conjugal abode, has given cause for the wife to seek
redress in the courts, and ask for adequate support, an award of attorney's fee to the wife must be made.
Ample authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code which
empower courts to grant counsel's fee "in actions for legal support," and in cases "where the court deems it
just and equitable that attorney's fees x x x" should be recovered.
APPEAL from a judgment of the Court of First Instance of Negros Occidental.
CASTRO, J.:
CASTRO, J.:
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of
Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had
not only abandoned her but as well was mismanaging their conjugal partnership properties, and
praying for (1) separation of property, (2) monthly support of P2,500 during the pendency of the
action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal
assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with
legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus
costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case
to us, "it appearing that the total value of the conjugal assets is over P500,000".
FACTS:
Page 22 of 100
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City
on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria
(1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven
parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay
Cadastre, all assessed at P43,580. All these parcels are registered in their names. The hacienda in
Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31,
1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain
of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the
year 1957. As of December 31, 1959, the total assets of the various enterprises of the conjugal
partnership were valued at P1,021,407.68, not including those of the Top Service Inc., of which firm
the defendant has been the president since its organization in 1959 in Manila with a paid-up capital
of P50,000, P10,000 of which was contributed by him. This corporation was the Beverly Hills
Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley Subdivision in
Las Piñas, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000,
an amount borrowed from the Manufacturer's Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the
Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the
Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to the
court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by
the defendant to the conjugal abode to see his wife was on June 15, 1955;(1968)
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the
defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were far
from cordial, and that it was from 1948 that the former has been receiving an allowance
from the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business
activities of the partnership, and that this silence constituted "abuse of administration of the
conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of
the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her,
and, on the other hand, in not allowing the defendant to establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
Page 23 of 100
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of
P20,000, with interest at the legal rate.1äwphï1.ñët
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the
defendant from the plaintiff constitute abandonment in law that would justify a separation of the
conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff
of the state of their business enterprises such an abuse of his powers of administration of the
conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955,
although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard
Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the
defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during
which they engaged in brief conversations. After 1955 up to the time of the trial, the defendant had
never visited the conjugal abode, and when he was in Bacolod, she was denied communication with
him. He has abandoned her and their children, to live in Manila with his concubine, Nenita
Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and
Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one
of her husband's polo shirt which was written by Nenita and in which she asked "Bering" to meet her
near the church. She confronted her husband who forthwith tore the note even as he admitted his
amorous liaison with Nenita. He then allayed her fears by vowing to forsake his mistress.
Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also
written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and
expressed the hope that the addressee ("Darling") could join her in Baguio as she was alone in the
Patria Inn and lonely in "a place for honeymooners". Immediately after her husband departed for
Manila the following morning, the plaintiff enplaned for Baguio, where she learned that Nenita had
actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she met her
husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel
where she again confronted him about Nenita. He denied having further relations with this woman.
Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the home of the
spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her employment
she saw the defendant in the place only once. This declaration is contradicted, however, by the
plaintiff herself who testified that in 1955 the defendant "used to have a short visit there," which
statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in
1957, or a year before the filing of the action, he started to live separately from his wife. When he
transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it
never has been, to abandon his wife and children, but only to teach her a lesson as she was
quarrelsome and extremely jealous of every woman. He decided to live apart from his wife
temporarily because at home he could not concentrate on his work as she always quarreled with
him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila for
some duration of time to manage their expanding business and look for market outlets for their
texboard products. Even the plaintiff admitted in both her original and amended complaints that
"sometime in 1953, because of the expanding business of the herein parties, the defendant
established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of". From
the time he started living separately in Mandalagan up to the filing of the complaint, the plaintiff
herself furnished him food and took care of his laundry. This latter declaration was not rebutted by
the plaintiff.
Page 24 of 100
The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he
has never failed, even for a single month, to give them financial support, as witnessed by the
plaintiff's admission in her original and amended complaints as well as in open court that during the
entire period of their estrangement, he was giving her around P500 a month for support. In point of
fact, his wife and children continued to draw allowances from his office of a total ranging from
P1,200 to P1,500 a month. He financed the education of their children, two of whom were studying
in Manila at the time of the trial and were not living with the plaintiff. While in Bacolod City, he never
failed to visit his family, particularly the children. His wife was always in bad need of money because
she played mahjong, an accusation which she did not traverse, explaining that she
played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of
the defendant on the matter of the support the latter gave to his family, by declaring in court that
since the start of his employment in 1950 as assistant general manager, the plaintiff has been
drawing an allowance of P1,000 to P1,500 monthly, which amount was given personally by the
defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita
Hernandez when she was barely 12 years old, but had lost track of her thereafter. His constant
presence in Manila was required by the pressing demands of an expanding business. He denied
having destroyed the alleged note which the plaintiff claimed to have come from Nenita, nor having
seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a concubine is
based on mere suspicion. He had always been faithful to his wife, and not for a single instance had
he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal
partnership, the plaintiff declared that the defendant refused and failed to inform her of the progress
of their various business concerns. Although she did not allege, much less prove, that her husband
had dissipated the conjugal properties, she averred nevertheless that her husband might squander
and dispose of the conjugal assets in favor of his concubine. Hence, the urgency of separation of
property.
The defendant's answer to the charge of mismanagement is that he has applied his industry,
channeled his ingenuity, and devoted his time, to the management, maintenance and expansion of
their business concerns, even as his wife threw money away at the mahjong tables. Tangible proof
of his endeavors is that from a single cargo truck which he himself drove at the time of their
marriage, he had built up one business after another, the Speedway Trucking Service, the Negros
Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other
business enterprises worth over a million pesos; that all that the spouses now own have been
acquired through his diligence, intelligence and industry; that he has steadily expanded the income
and assets of said business enterprises from year to year, contrary to the allegations of the
complainant, as proved by his balance sheet and profit and loss statements for the year 1958 and
1959 (exhibits 1 and 2); and that out of the income of their enterprises he had purchased additional
equipment and machineries and has partially paid their indebtedness to the Philippine National Bank
and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to
prove concubinage on the part of the defendant, while pertinent and material in the determination of
the merits of a petition for legal separation, must in this case be regarded merely as an attempt to
bolster her claim that the defendant had abandoned her, which abandonment, if it constitutes
abandonment in law, would justify separation of the conjugal assets under the applicable provisions
of article 178 of the new Civil Code which read: "The separation in fact between husband and wife
Page 25 of 100
without judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has
abandoned the wife without just cause for at least one year, she may petition the court for a
receivership, or administration by her of the conjugal partnership property, or separation of
property". In addition to abandonment as a ground, the plaintiff also invokes article 167 of the new
Civil Code in support of her prayer for division of the matrimonial assets. This article provides that
"In case of abuse of powers of administration of the conjugal partnership property by the husband,
the courts, on the petition of the wife, may provide for a receivership, or administration by the wife,
or separation of property". It behooves us, therefore, to inquire, in the case at bar, whether there has
been abandonment, in the legal sense, by the defendant of the plaintiff, and/or whether the
defendant has abused his powers of administration of the conjugal partnership property, so as to
justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the defendant is
not guilty of abandonment of his wife, nor of such abuse of his powers of administration of the
conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by
the husband for at least one year are the same as those granted to her by article 167 in case of
abuse of the powers of administration by the husband. To entitle her to any of these remedies,
under article 178, there must be real abandonment, and not mere separation. 1 The abandonment
must not only be physical estrangement but also amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit
words, we nevertheless can determine its meaning from the context of the Law as well as from its
ordinary usage. The concept of abandonment in article 178 may be established in relation to the
alternative remedies granted to the wife when she has been abandoned by the husband, namely,
receivership, administration by her, or separation of property, all of which are designed to protect the
conjugal assets from waste and dissipation rendered imminent by the husband's continued absence
from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore,
physical separation alone is not the full meaning of the term "abandonment", if the husband, despite
his voluntary departure from the society of his spouse, neither neglects the management of the
conjugal partnership nor ceases to give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce
utterly. 2 The dictionaries trace this word to the root idea of "putting under a bar". The emphasis is on
the finality and the publicity with which some thing or body is thus put in the control of another, and
hence the meaning of giving up absolutely, with intent never again to resume or claim one's rights or
interests. 3 When referring to desertion of a wife by a husband, the word has been defined as "the
act of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return
to her, and never to resume his marital duties towards her, or to claim his marital rights; such
neglect as either leaves the wife destitute of the common necessaries of life, or would leave her
destitute but for the charity of others." 4 The word "abandonment", when referring to the act of one
consort of leaving the other, is "the act of the husband or the wife who leaves his or her consort
wilfully, and with an intention of causing per perpetual separation." 5 Giving to the word "abandoned",
as used in article 178, the meaning drawn from the definitions above reproduced, it seems rather
clear that to constitute abandonment of the wife by the husband, there must be absolute cessation
of marital relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and
children permanently. The record conclusively shows that he continued to give support to his family
despite his absence from the conjugal home. This fact is admitted by the complainant, although she
minimized the amount of support given, saying that it was only P500 monthly. There is good reason
Page 26 of 100
to believe, however, that she and the children received more than this amount, as the defendant's
claim that his wife and children continued to draw from his office more than P500 monthly was
substantially corroborated by Marcos Ganaban, whose declarations were not rebutted by the
plaintiff. And then there is at all no showing that the plaintiff and the children were living in want. On
the contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which
we can infer that she had money; to spare.
The fact that the defendant never ceased to give support to his wife and children negatives any
intent on his part not to return to the conjugal abode and resume his marital duties and rights.
In People v. Schelske, 6 it was held that where a husband, after leaving his wife, continued to make
small contributions at intervals to her support and that of their minor child, he was not guilty of their
"abandonment", which is an act of separation with intent that it shall be perpetual, since contributing
to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not
abandon his family where the evidence disclosed that he almost always did give his wife part of his
earnings during the period of their separation and that he gradually paid some old rental and grocery
bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the
findings of the court a quo, that the evidence on record fails to preponderate in favor of the plaintiff's
thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were
living as husband and wife in Manila, is altogether too indefinite. Aside from the uncorroborated
statement of the plaintiff that she knew that Nenita Hernandez was her husband's concubine,
without demonstrating by credible evidence the existence of illicit relations between Nenita and the
defendant, the only evidence on record offered to link the defendant to his alleged mistress is exh.
C. The plaintiff however failed to connect authorship of the said letter with Nenita, on the face
whereof the sender merely signed as "D" and the addressee was one unidentified "Darling". The
plaintiff's testimony on cross-examination, hereunder quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that
right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is this: In view
of the fact that you have never received a letter from Nenita, you have ot sent any letter to
her, you are not familiar with her handwriting?
A. Yes.
Page 27 of 100
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the
record presents a different picture. There is absolutely no evidence to show that he has squandered
the conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal
assets at the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as administrator
of the conjugal partnership to inform the wife of the progress of the family businesses constitutes
abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or
acts prejudicial to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for
these may be the result of mere inefficient or negligent administration. Abuse connotes willful and
utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts and/or
omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered by the
husband's leaving the conjugal abode, but the husband continues to manage the conjugal properties
with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives
support to his wife and children, as in the case at bar, we are not disposed to grant the wife's
petition for separation of property. This decision may appear to condone the husband's separation
from his wife; however, the remedies granted to the wife by articles 167 and 178 are not to be
construed as condonation of the husband's act but are designed to protect the conjugal partnership
from waste and shield the wife from want. Therefore, a denial of the wife's prayer does not imply a
condonation of the husband's act but merely points up the insufficiency or absence of a cause of
action.1äwphï1.ñët
Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of
conjugal properties because the basic policy of the law is homiletic, to promote healthy family life
and to preserve the union of the spouses, in person, in spirit and in property.
Consistent with its policy of discouraging a regime of separation as not in harmony with the
unity of the family and the mutual affection and help expected of the spouses, the Civil Code
(both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial
decree during the existence of the marriage (Article 190, new Civil Code, Article 1432, old
Civil Code): and in the latter case, it may only be ordered by the court for causes specified
in Article 191 of the new Civil Code. 8
Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may altogether slam shut the door for
possible reconciliation. The estranged spouses may drift irreversibly further apart; the already
broken family solidarity may be irretrievably shattered; and any flickering hope for a new life together
may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the
devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal
abode, has given cause for the plaintiff to seek redress in the courts, and ask for adequate support,
Page 28 of 100
an award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in
paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's
fees "in actions for legal support" and in cases "where the court deems it just and equitable that
attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under
the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law
enjoins husband and wife to live together, and, secondly, exhort them to avail of — mutually,
earnestly and steadfastly — all opportunities for reconciliation to the end that their marital
differences may be happily resolved, and conjugal harmony may return and, on the basis of mutual
respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is
reversed and set aside. Conformably to our observations, however, the defendant is ordered to pay
to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have
rejoined her in the conjugal home, which amount may, in the meantime, be reduced or increased in
the discretion of the court a quo as circumstances warrant. The award of attorney's fees to the
plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.
Page 29 of 100
[5]
G.R. No. L-10033 December 28, 1956
BENJAMIN BUGAYONG, plaintiff-appellant,
vs.
LEONILA GINEZ, defendant-appellee.
HUSBAND AND WlFE; INFIDELITIES AMOUNTING TO ADULTERY; CONDONATION DEPRIVES

OFFENDED SPOUSE OF ACTION FOR LEGAL SEPARATION.—Granting that the infidelities amounting
to adultery were committed by the wife, the act of the husband in persuading her to come along with him, and
the fact that she went with-him and together they slept as husband and wife, deprives him, as the alleged
offended spouse, of any action for legal separation against the offending wife, because his said conduct comes
within the restriction of Article 100 of the Civil Code.
2.ID.; ID.; ID.; EXTENT OF COHABITATION TO CONSTITUTE CONDONATION.—The only general

rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to
conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L.J. Prob. 73).
APPEAL from an order of the Court of First Instance of Pangasinan. Leano, J.
FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on
motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court
of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no
question of fact involved, the motion being predicated on the assumption as true of the very facts
testified to by plaintiff-husband.
FACTS:
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez
left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside
with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study
in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing)
informing him of alleged acts of infidelity of his wife which he did not even care to mention. On
cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims to
have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in
October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to
consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the
house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded
Page 30 of 100
to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2
nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed
the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from
his wife the truth of the information he received that she had committed adultery but Leonila, instead
of answering his query, merely packed up and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer
vehemently denying the averments of the complaint and setting up affirmative defenses. After the
issues were joined and convinced that a reconciliation was not possible, the court set the case for
hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after
plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the
dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave
plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of
the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of
action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act
charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a
cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second ground
of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of
Appeals, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised
in the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified the
case to Superiority.
ISSUE: W/N the husband is an offended spouse capacitated to file a petition for legal separation
HELD: NEGATIVE. There was condonation in this case
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
Page 31 of 100
ART. 100. The legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot by either of them. Collusion between the
parties to obtain legal separation shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year from and
after the date on which the plaintiff became cognizant of the cause and within five years
from and after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of the
charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will
disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted,
however, that in defendant's answer she vehemently and vigorously denies having committed any
act of infidelity against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with
the averments of the complaint, We would have to conclude that the facts appearing on the record
are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff
claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous
letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife
addressed to him admitting that she had been kissed by one Eliong, whose identity was not
established and which admission defendant had no opportunity to deny because the motion to
dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that
can be relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of
conduct under the assumption that he really believed his wife guilty of adultery. What did he do in
such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding
her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried
to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose
because his wife, instead of answering his query on the matter, preferred to desert him, probably
enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now,
do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was
unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the
order appealed from, the Court a quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please
tell this Hon. Court why you want to separate from your wife? — A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told me to consult the legal
adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she
went to the house of our god-mother, and as a husband I went to her to come along with me
in our house but she refused. (p. 12, t.s.n.)lawphil.net
Page 32 of 100
Q. What happened next? — A. I persuaded her to come along with me. She consented but I
did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12,
t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day
and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband
and wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as
husband and wife? — A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p.
19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as
defined on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there has been
no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, legal separation cannot be claimed by either of them. Collusion between the
parties to obtain legal separation shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions

quoted above, clearly shows that there was a condonation on the part of the husband for the
supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife.
Admitting for the sake of argument that the infidelities amounting to adultery were committed
by the defendant, a reconciliation was effected between her and the plaintiff. The act of the
latter in persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and together they slept
there as husband and wife for one day and one night, and the further fact that in the second
night they again slept together in their house likewise as husband and wife — all these facts
have no other meaning in the opinion of this court than that a reconciliation between them
was effected and that there was a condonation of the wife by the husband. The
reconciliation occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that

"condonation is implied from sexual intercourse after knowledge of the other infidelity. such
acts necessary implied forgiveness. It is entirely consonant with reason and justice that if
Page 33 of 100
the wife freely consents to sexual intercourse after she has full knowledge of the husband's
guilt, her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for

divorce and bars the right to a divorce. But it is on the condition, implied by the law
when not express, that the wrongdoer shall not again commit the offense; and also
that he shall thereafter treat the other spouse with conjugal kindness. A breach of
the condition will revive the original offense as a ground for divorce. Condonation
may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different
states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse
after discovery of the offense is ordinarily sufficient to constitute condonation, especially as
against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above
quoted, and of the various decisions above-cited, the inevitable conclusion is that the
present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against
the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to
constitute condonation, and where the parties live in the same house, it is presumed that
they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after
it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114
S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption
of marital cohabitation as a basis of condonation will generally be inferred, nothing
appearing to the contrary, from the fact of the living together as husband and wife,
especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.
Page 34 of 100
There is no merit in the contention of appellant that the lower court erred in entertaining condonation
as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss,
because in the second ground of the motion to dismiss. It is true that it was filed after the answer
and after the hearing had been commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17
of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with
costs against appellant. It is so ordered.
Page 35 of 100
[6]
G.R. No. L-3047 May 16, 1951
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.
1.ADULTERY; EACH SEXUAL INTERCOURSE A CRIME.—Adultery is a crime of result and not of

tendency, as the Supreme Court of Spain has held (S. 10 December 1945); it is an instantaneous crime which
is consummated and exhausted or completed at the moment of the carnal union. Each sexual intercourse
constitutes a crime of adultery (Cuello Calón, Derecho Penal, Vol. II, p. 569).
2.ID.; ID.; LAW DOES NOT BAR FILING OF AS MANY COMPLAINTS AS THERE ARE

ADULTEROUS ACTS.—True, two or more adulterous acts committed by the same defendants are against the
same person—the offended husband, the same status—the union of the husband and wife by their marriage,
and the same community represented by the State for its interest in maintaining and preserving such status.
But this identity of the offended party, status and society does not argue against the commission of the crime
of adultery as many times as there were carnal acts consummated, for as long as the status remains unchanged,
the nexus undissolved and unbroken, an encroachment or trespass upon that status constitutes a crime. There is
no constitutional or legal provision which bars the filing of as many complaints for adultery as there were
adulterous acts committed, each constituting one crime.
3.ID.; ID.; ID.; JEOPARDY RULE, NOT VIOLATED; REASON.—A second complaint charging the

commission of adulterous acts not included in the first complaint does not constitute a violation of the double
jeopardy clause of the Constitution, otherwise the adultery committed by the male defendant charged in the
second complaint, should he be absolved from, or acquitted of, the first charge upon the evidence that he did
not know that his codefendant was a married woman, would remain or go unpunished. The defense set up by
him against the first charge upon which he was acquitted would no longer be available, because at the time of
the commission of the crime charged in the second complaint, he already knew that his codefendant was a
married woman and yet he continued to have carnal knowledge of her.
4.ID.; ADULTERY NOT A CONTINUING OFFENSE; ABSENCE OF UNITY OR CRIMINAL INTENT

OR PURPOSE.—The notion or concept of a continuous crime has its origin in the juridical fiction favorable
to the law transgressors and in many a case against the interest of society (Cuello Calón, Derecho Penal, Vol.
II, p. 521). For it to exist there should be plurality of acts performed separately during a period of time; unity
of penal provision infringed upon or violated; and unity of criminal intent or purpose, which means that two or
more violations of the same penal provision are united in one and the same intent leading to the perpetration of
the same criminal purpose or aim (Ibid. p. 520). In adultery, the last unity does not exist, because the culprits
perpetrate the crime in every sexual intercourse and they need not do another or other adulterous acts to
consummate it.
5.ID.; PARDON BY HUSBAND.—Even if the husband should pardon his adulterous wife, such pardon
would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the
pardon was granted, because the pardon refers to previous, and not to subsequent, adulterous acts (Viada, 5th
ed., Vol. 5, p. 208; Groizard, 2nd ed., Vol. 5, pp. 57-58).
APPEAL from an order of the Court of First Instance of Pampanga.
Rilloraza, J.
The facts are stated in the opinion of the Court.
Page 36 of 100
PADILLA, J.:
In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres Bondoc
against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and having
repeated sexual intercourse during the period from the year 1946 to 14 March 1947, the date of the
filing of the complaint, Dalmacio Bondoc knowing his codefendant to be a married woman (criminal
case No. 426). The defendant wife entered the plea of guilty and was sentenced to suffer four
months of arresto mayor which penalty she served. In the same court, on 17 September 1948, the
offended husband filed another complaint for adulterous acts committed by his wife and her
paramour from 15 March 1947 to 17 September 1948, the date of the filing of the second complaint
(criminal case No. 735). On 21 February 1949, each of the defendants filed a motion to quash the
complaint of the ground that they would be twice put in jeopardy of punishment for the same
offense. The trial court upheld the contention of the defendants and quashed the second complaint.
From the other sustaining the motions to quash the prosecution has appealed.
The trial court held that the adulterous acts charged in the first and second complains must be
deemed one continuous offense, the defendants in both complaints being the same and identical
persons and the two sets of unlawful acts having taken place continuously during the years 1946,
1947 and part of 1948, and that the acts or two sets of acts that gave rise to the c rimes of adultery
complained of in both cases constitute one and the same offense, within the scope and meaning of
the constitutional provision that "No person shall be twice put in jeopardy of punishment for the
same offense.".
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10
December 1945); it is a instantaneous crime which is consummated and exhausted or completed at
the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery (Cuello
Calon, Derecho Penal, Vol. II, p. 569). True, two or more adulterous acts committed by the same
defendants are against the same person — the offended husband, the same status — the union of
the husband and wife by their marriage, and the same community represented by the State for its
interest in maintaining and preserving such status. But this identity of the offended party, status
society does not argue against the commission of the crime of adultery as many times as there were
carnal consummated, for as long as the status remain unchanged, the nexus undissolved and
unbroken, an encroachment or trespass upon that status constitutes a crime. There is no
constitutional or legal provision which bars the filing of as many complaints for adultery as there
were adulterous acts committed, each constituting one crime.
The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law
transgressors and in many a case against the interest of society (Cuello Calon, Derecho Penal, Vol.
II, p. 521). For it to exist there would be plurality of acts performed seperately during a period of
time; unity of penal provision infringed upon or violated; and unity of criminal intent or purpose,
which means that two or more violations of the same penal provision are united in one and the same
intent leading to the perpetration of the same criminal purpose or aim (Ibid. p. 520).In the instant
case the last unity does not exist, because as already stated the culprits perpetrate the crime in
every sexual intercourse and they need not to another or other adulterous acts to consummate it.
After the last acts of adultery had been committed as charged in the first complaint, the defendants
again committed adulterous acts not included in the first complaint and for which the second
complaint was filed. It was held by the Supreme Court of Spain that another crime of adultery was
committed, if the defendants, after their provincional release during the pendency of the case in
which they were sent to prison to serve the penalty imposed upon them(S. 28 February 1906; 76
Jur. Crim. pp. 208-210).
Page 37 of 100
Another reason why a second complaint charging the commission of adulterous acts not included in
the first complaint does not constitute a violation of the double jeopardy clause of the constitution is
that, if the second places complaint the defendants twice in jeopardy of punishment for the same
offense, the adultery committed by the male defendant charged in the second complaint, should he
be absolved from, or acquitted of, the first charge upon the evidence that he did not know that his
codefendant was a married woman, would remain or go unpunished. The defense set up by him
against the first charge upon which he was acquitted would no longer be available, because at the
time of the commission of the crime charged in the second complaint, he already knew that this
defendant was a married woman and he continued to have carnal knowledge of her. Even if the
husband should pardon his adulterous wife, such pardon would not exempt the wife and her
paramour from criminal liability for adulterous acts committed after the pardon was granted because
the pardon refers to previous and not to subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208;
Groizard [2nd ed.] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby reversed and
set aside, and trial court directed to proceed with the trial of the defendants in accordance with law,
with costs against the appellees.
Page 38 of 100
[7]
G.R. No. L-11766 October 25, 1960
SOCORRO MATUBIS, plaintiff-appellant,
vs.
ZOILO PRAXEDES, defendant-appellee.
1.HUSBAND AND WIFE; LEGAL SEPARATION; LIMITATION OF ACTIONS; TIME WITHIN WHICH

TO BRING ACTION.—While defendant's act of cohabiting with a woman other than his wife constituted
concubinage, a ground for legal separation, nevertheless, the complaint should be dismissed, because it was
not filed within one year from and after the date on which the plaintiff became cognizant of the cause and
within five years f rom and after the date when such cause occurred (Art. 102, new Civil Code).
2.ID.; ID.; CONDONATION OR CONSENT OF INNOCENT SPOUSE; HOW MADE.—The law

specifically provides that legal separation may be claimed only by the innocent spouse, provided the latter has
not condoned or consented to the adultery or concubinage committed by the other spouse (Art. 100, new Civil
Code; and plaintiff (innocent spouse) having condoned and/or consented in writing to the concubinage
committed by the defendant husband, she is now underserving of the court's sympathy
(People vs. Schneckenburger, 73 Phil., 413).
APPEAL from a judgment of the Court of First Instance of Camarines Sur. Surtida, J.
PAREDES, J.:
Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First
Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of
surname against her husband defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant spouse, who interposed the defense that
it was plaintiff who left the conjugal home.
During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the
following facts were established:.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure
to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live
separately from each other, which status remained unchanged until the present. On April 3, 1948,
plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are
hereunder reproduced..*by which both agreed to *
. . . (a) That both of us relinquish our right over the other as legal husband and wife.
(b) That both without any interference by any of us, nor either of us can prosecute the other
for adultery or concubinage or any other crime or suit arising from our separation.
(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he
may received thereafter, nor I the husband is not entitled for anything from my wife.
Page 39 of 100
(d) That neither of us can claim anything from the other from the time we verbally separated,
that is from May 30, 1944 to the present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1,
1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh.
C.).It was shown also that defendant and Asuncion deported themselves as husband and wife and
were generally reputed as such in the community.
After the trial, without the defendant adducing any evidence, the court a quo rendered judgment
holding that the acts of defendant constituted concubinage, a ground for legal separation. It
however, dismissed the complaint by stating:
While this legal ground exist, the suit must be dismissed for two reasons, viz:
Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except
within one year from and after the date on which the plaintiff became cognizant of the cause
and within five years from and after the date when the cause occurred. The plaintiff became
aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955.
The complaint was filed on April 24, 1956. The present action was, therefore, filed out of
time and for that reason action is barred.
Article 100 of the new Civil Code provides that the legal separation may be claimed only by
the innocent spouse, provided there has been no condonation of or consent to the adultery
or concubinage. As shown in Exhibit B, the plaintiff has consented to the commission of
concubinage by her husband. Her consent is clear from the following stipulations:
(b) That both of us is free to get any mate and live with as husband and wife without
any interference by any of us, nor either of us can prosecute the other for adultery
or concubinage or any other crime or suit arising from our separation. (Exh. B).
This stipulation is an unbridled license she gave her husband to commit concubinage.
Having consented to the concubinage, the plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant claiming that it was error for the
lower court to have considered that the period to bring the action has already elapsed and that there
was consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the
interpretation of the provisions of the law upon which the lower court based its judgment of
dismissal.
Article 102 of the new Civil Code provides:
An action for legal separation cannot be filed except within one year from and after the date
on which the plaintiff became cognizant of the cause and within five years from after the
date when cause occurred.
w/n the petition for legal separation was filed out of time
W/N petitioner has the legal standing to file the case – negative – he who comes to the court must
come with clean hands. The agreement was consent/ or condonation so that she is considered as
not the offended party.
Page 40 of 100
held: affirmative
The complaint was filed outside the periods provided for by the above Article. By the very admission
of plaintiff, she came to know the ground (concubinage) for the legal separation in January, 1955.
She instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press
this matter in her brief.
The very wording of the agreement Exhibit B. gives no room for interpretation other than that given
by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first
part having to do with the act of living separately which he claims to be legal, and the second part —
that which becomes a license to commit the ground for legal separation which is admittedly illegal.
We do not share appellant's view. Condonation and consent on the part of plaintiff are necessarily
the import of paragraph 6(b) of the agreement. The condonation and consent here are not only
implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may
be claimed only by the innocent spouse, provided there has been no condonation of or consent to
the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now
undeserving of the court's sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's
counsel even agrees that the complaint should be dismissed. He claims however, that the grounds
for the dismissal should not be those stated in the decision of the lower court, "but on the ground
that plaintiff and defendant have already been legally separated from each other, but without the
marital bond having been affected, long before the effectivity of the new Civil Code" (appellants
brief, pp. 7-8). Again, we cannot subscribed to counsel's contention, because it is contrary to the
evidence.
Conformably with the foregoing, we find that the decision appealed from is in accordance with the
evidence and the law on the matter. The same is hereby affirmed, with costs.
Page 41 of 100
[8]
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C.

PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.
Remedial Law; Petition for Certiorari; Petition for certiorari is allowed when the default order is
improperly declared, or even when it is properly declared where grave abuse of discretion attended such
declaration.—Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been either to appeal
from the judgment by default or to file a petition for relief from judgment. This rule, however, is not
inflexible; a petition for certiorari is allowed when the default order is improperly declared, or even when it
is properly declared, where grave abuse of discretion attended such declaration. In these exceptional instances,
the special civil action of certiorari to declare the nullity of a judgment by default is available. In the case at
bench, the default order unquestionably is not legally sanctioned.
Civil Law; Marriage; Article 101 of the Civil Code reflects public policy on marriage that it is a social
institution in which the state is vitally interested, so that its continuation can not be made to depend upon the
parties themselves.—Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. In Brown v. Yambao, the Court has observed: “The policy of Article 101 of the
new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal
separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a
mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or
interruption can not be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs.
Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate
whether the proceedings for separation or annulment are fully justified or not.”
Same; Same; Art. 103, Civil Code now Art. 58, Family Code; Legal Separation must be tried before six
months have elapsed since the filing of the petition to provide the parties a “cooling-off” period.—Article 103
of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation
must “in no case be tried before six months shall have elapsed since the filing of the petition,” obviously in
order to provide the parties a “cooling-off’ period. In this interim, the court should take steps toward getting
the parties to reconcile.
Same; Same; Remedial Law; Rule 18, Rules of Court; No defaults in action for annulments of marriage
or for legal separation.—The significance of the above substantive provisions of the law is further
underscored by the inclusion of the following provision in Rule 18 of the Rules of Court: “SEC. 6. No defaults
in actions for annulments of marriage or for legal separation.—If the defendant in an action for annulment of
marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated.”
PETITION for certiorari to annul a decision of the then Court of First Instance of Cotabato, Br. 1. Carriaga,
Jr., J.
VITUG, J.:
Page 42 of 100
The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional
Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion
in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other
things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita
de la Concepcion.
On 29 October 1979, *Respondent Concepcion Alanis* filed with the court below a complaint for the
declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and one
Clarita de la Concepcion, as well as for legal separation (between Alanis and Pacete), accounting
and separation of property. In her complaint, she averred that she was married to Pacete on 30 April
1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo
who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage
with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only
on 01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting
of large tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several
pieces of property either in his name and Clarita or in the names of his children with Clarita and
other "dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation
between her and Pacete was impossible since he evidently preferred to continue living with Clarita.
*The defendants filed several motions for extension of time to file an answer. The last of which was
denied. *
The defendants were each served with summons on 15 November 1979. They filed a motion for an
extension of twenty (20) days from 30 November 1979 within which to file an answer. The court
granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed
a second motion for an extension of another thirty (30) days from 20 December 1979. On 07
January 1980, the lower court granted the motion but only for twenty (20) days to be counted from
20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants'
counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February
1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days
counted from the expiration of the 30-day period previously sought" within which to file an answer.
The following day, or on 06 February 1980, the court denied this last motion on the ground that it
was "filed after the original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith
granted.
*the hearing of the case proceeded on *The plaintiff was then directed to present her evidence. 2 The
court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court3 promulgated the herein questioned decision, disposing of the case,
thus —
WHEREFORE, order is hereby issued ordering:
1. The issuance of a Decree of Legal Separation of the marriage between, the

plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete, in accordance with the Philippine laws and with consequences, as provided
for by our laws;
Page 43 of 100
2. That the following properties are hereby declared as the conjugal properties of
the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
defendant, Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in
the barrio of Langcong, Municipality of Matanog (previously of Parang), province of
Maguindanao (previously of Cotabato province) with an area of 45,265 square
meters registered in the name of Enrico Pacete, Filipino, of legal age, married to
Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area
of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of
Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together
with all its improvements, which parcel of land, as shown by Exhibits "K-1" was
acquired by way of absolute deed of sale executed by Amrosio Mondog on January
14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered
by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as
shown by Exhibit "R", the same was registered in the name of Enrico Pacete and
the same was acquired by Enrico Pacete last February 17, 1967 from Ambag
Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of

5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit
"S", and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at

Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico
Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area
of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the
name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which
parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato.

Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less,
and also covered by Tax Declaration No. 8607 (74) both in the name of the
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda
Bernardino, as shown by Exhibit "M-1".

Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the
name of Enrico Pacete and which parcel of land he acquired last September 25,
1962 from Conchita dela Torre, as shown by Exhibit "P-1".
Page 44 of 100
Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in
the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July
16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name
of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at
Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745
(74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico
Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit
"0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang,
Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,

covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the
joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,

covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and
covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977
be cancelled and in lieu thereof, the joint name of Concepcion (Conchita) Alanis
Pacete and her husband, Enrico L. Pacete, be registered as their joint property,
including the 50 hectares fishpond situated in the same place, Barrio Timanan,
Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561;
Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547;
Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
Page 45 of 100
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111;
Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758;
Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
P46,950.00 which is the share of the plaintiff in the unaccounted income of the
ricemill and corn sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary
equipment of 30% of whether the plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and

Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Issue: W/N the Trial Court gravely abused its discretion in hearing the case on the merits within 6
months from the filing of the case
Held: Affirmative.
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been
either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition for certiorari is allowed when the default order
is improperly declared, or even when it is properly declared, where grave abuse of discretion
attended such declaration.6 In these exceptional instances, the special civil action of certiorari to
declare the nullity of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides: *that*
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of

facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is
no collusion, the prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance,
reproduced in Article 60 of the Family Code.9
Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor
of the law. In Brown v. Yambao, 10 the Court has observed:
Page 46 of 100
The policy of Article 101 of the new Civil Code, calling for the intervention of the
state attorneys in case of uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize that marriage is more
than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption can not be made to depend upon
the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43;
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon any
relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for
legal separation must "in no case be tried before six months shall have elapsed since the filing of
the petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court
should take steps toward getting the parties to reconcile.
The significance of the above substantive provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal separation. —
If the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not
a collusion between the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are
impelled by no less than the State's interest in the marriage relation and its avowed intention not to
leave the matter within the exclusive domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies,
whether principal or incidental, have likewise been sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory requirements aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including
the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Page 47 of 100
[9]
G.R. No. L-17014 August 11, 1921
MARIANO B. ARROYO, plaintiff-appellant,
vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.
1.HUSBAND AND WIFE; SEPARATE MAINTENANCE OF WIFE.—Where the wife is forced to leave the marital
home by ill-treatment from her husband, he can be compelled to provide for her separate maintenance,
without regard to whether a cause for divorce exists or not.
2.ID.; ID.; NECESSITY FOR SEPARATION.—Nevertheless, the interests of both parties as well as of society at
large require that the courts should move with caution in enforcing the duty to provide for the separate
maintenance of the wife, for this step involves a recognition of the anomalous de facto separation of the
spouses. From this consideration it follows that provision should not be made for separate maintenance in
favor of the wife unless it appears that the continued cohabitation of the pair has become impossible and
separation necessary from the fault of the husband.
3.ID.; ACTION BY HUSBAND FOR RESTITUTION OF CONJUGAL RIGHTS; WIFE ADMONISHED TO RETURN.—In an
action by the husband against a wife to obtain a restitution of conjugal rights, the court entered a judicial
declaration to the effect that the wife had absented herself from the marital home without sufficient cause,
and she was admonished that it was her duty to return. The court, however, refrained from making an
order absolute requiring her to return.
APPEAL from a judgment of the Court1 of First Instance of Iloilo. Camus, J.
STREET, J.:
Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by
marriage in the year 1910, and since that date, with a few short intervals of separation, they have
lived together as man and wife in the city of Iloilo until July 4, 1920, when the wife went away from
their common home with the intention of living thenceforth separate from her husband. After efforts
had been made by the husband without avail to induce her to resume marital relations, this action
was initiated by him to compel her to return to the matrimonial home and live with him as a dutiful
wife.
*Aggrieved, the husband filed a case the CFI of Iloilo to compel respondent to live with him.*
The defendant answered, admitting the fact of marriage, and that she had left her husband's home
without his consent; but she averred by way of defense and cross-complaint that she had been
compelled to leave by cruel treatment on the part of her husband. Accordingly, she in turn prayed for
affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the conjugal
partnership; (3) and an allowance for counsel fees and permanent separate maintenance.
Upon hearing the cause the lower court gave judgment in favor of the defendant, authorizing her to
live apart from her husband, granting her alimony at the rate of P400 per month, and directing that
the plaintiff should pay to the defendant's attorney the sum of P1,000 for his services to defendant in
the trial of the case. The plaintiff thereupon removed the case with the usual formalities by appeal to
this court.
Page 48 of 100
The trial judge *held*, upon consideration of the evidence before him, reached the conclusion that
the husband was more to blame than his wife and that his continued ill-treatment of her furnished
sufficient justification for her abandonment of the conjugal home and the permanent breaking off of
marital relations with him.
Issue: w/n the trial court erred in ruling that the wife is entitled to live separately from the husband.
Held: Negative:
SC:
We have carefully examined and weighed every line of the proof, and are of the opinion that the
conclusion stated is wholly untenable.
The evidence shows that the wife is afflicted with a disposition of jealousy towards her husband in
an aggravated degree; and to his cause are chiefly traceable without a doubt the many miseries that
have attended their married life. In view of the decision which we are to pronounce nothing will be
said in this opinion which will make the resumption of married relations more difficult to them or
serve as a reminder to either of the mistakes of the past;
and we prefer to record the fact that so far as the proof in this record shows neither of the spouses
has at any time been guilty of conjugal infidelity, or has given just cause to the other to suspect illicit
relations with any person. The tales of cruelty on the part of the husband towards the wife, which are
the basis of the cross-action, are in our opinion no more than highly colored versions of personal
wrangles in which the spouses have allowed themselves from time to time to become involved and
would have little significance apart from the morbid condition exhibited by the wife. The judgment
must therefore be recorded that the abandonment by her of the marital home was without sufficient
justification in fact.
In examining the legal questions involved, it will be found convenient to dispose first of the
defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband to
maintain the wife is a duty universally recognized in civil society and is clearly expressed in articles
142 and 143 of the Civil code. The enforcement of this obligation by the wife against the husband is
not conditioned upon the procurance of a divorce by her, nor even upon the existence of a cause for
divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial
abode and to live apart from her husband, she can, in this jurisdiction, compel him to make provision
for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to
pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation,
(Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as
of society at large require that the courts should move with caution in enforcing the duty to provide
for the separate maintenance of the wife, for this step involves a recognition of the de
facto separation of the spouses — a state which is abnormal and fraught with grave danger to all
concerned. From this consideration it follows that provision should not be made for separate
maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has
become impossible and separation necessary from the fault of the husband.
In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist,
Judge Thomas M. Cooley, held that an action for the support of the wife separate from the husband
will only be sustained when the reasons for it are imperative (47 Mich., 151). That imperative
necessity is the only ground on which such a proceeding can be maintained also appears from the
decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial
Page 49 of 100
divorces have never been procurable on any ground, the Supreme court fully recognizes the right of
the wife to have provision for separate maintenance, where it is impossible for her to continue safely
to cohabit with her husband; but the same court has more than once rejected the petition of the wife
for separate maintenance where it appeared that the husband's alleged cruelty or ill-treatment was
provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197;
16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq. [S. Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court
in a case where cruelty on the part of the husband was relied upon to secure a divorce for the wife,
made use of the following eloquent words, — which are perhaps even more applicable in a
proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be obtained
except on the single ground of adultery and this, too, after the conviction of the guilty spouse in a
criminal prosecution for that crime. Said he:
That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but
the question occurs, What is cruelty? . . .
What merely wounds the mental feelings is in few cases to be admitted where they are not
accompanied with bodily injury, either actual or menaced. Mere austerity of temper,
petulance of manners, rudeness of language, a want of civil attention and accommodation,
even occasional sallies of passion, if they do not threaten bodily harm, do not amount to
legal cruelty: they are high moral offenses in the marriage-state undoubtedly, not innocent
surely in any state of life, but still they are not that cruelty against which the law can relieve.
Under such misconduct of either of the parties, for it may exist on the one side as well as on
the other, the suffering party must bear in some degree the consequences of an injudicious
connection; must subdue by decent resistance or by prudent conciliation; and if this cannot
be done, both must suffer in silence. . . .
The humanity of the court has been loudly and repeatedly invoked. Humanity is the second
virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply,
and of humanity which confined its views merely to the happiness of the present parties, it
would be a question easily decided upon first impressions. Every body must feel a wish to
sever those who wish to live separate from each other, who cannot live together with any
degree of harmony, and consequently with any degree of happiness; but my situation does
not allow me to indulge the feelings, much less the first feelings of an individual. The law
has said that married persons shall not be legally separated upon the mere disinclination of
one or both to cohabit together. . . .
To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it
would not be difficult to show that the law in this respect has acted with its usual wisdom
and humanity with that true wisdom, and that real humanity, that regards the general
interests of mankind. For though in particular cases the repugnance of the law to dissolve
the obligations of matrimonial cohabitation may operate with great severity upon individual,
yet it must be carefully remembered that the general happiness of the married life is secured
by its indissolubility. When people understand that they must live together, except for a very
few reasons known to the law, they learn to soften by mutual accommodation that yoke
which they know cannot shake off; they become good husbands and good wives form the
necessity of remaining husbands and wives; for necessity is a powerful master in teaching
the duties which it imposes. . . . In this case, as in many others, the happiness of some
individuals must be sacrificed to the greater and moore general good. (Evans vs. Evans, 1
Hag. Con., 35; 161 Eng. Reprint, 466, 467.)
Page 50 of 100
In the light of the considerations stated, it is obvious that the cross-complaint is not well founded and
none of the relief sought therein can be granted.
The same considerations that require the dismissal of the cross-complaint conclusively prove that
the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his wife
and that she is under an obligation, both moral and legal, to return to the common home and cohabit
with him. The only question which here arises is as to the character and extent of the relief which
may be properly conceded to him by judicial decree.
The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in
the petitory part of the complaint that he is entitled to a permanent mandatory injunction requiring
the defendant to return to the conjugal home and live with him as a wife according to the precepts of
law and morality. Of course if such a decree were entered, in unqualified terms, the defendant would
be liable to attachment for contempt, in case she should refuse to obey it; and, so far as the present
writer is aware, the question is raised for the first time in this jurisdiction whether it is competent for
the court to make such an order.
Upon examination of the authorities we are convinced that it is not within the province of the courts
of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights
to, the other. Of course where the property rights of one of the pair are invaled, an action for
restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an
order, enforcible by process of contempt, may be entered to compel the restitution of the purely
personal rights of consortium. At best such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and the experience of these countries where the
court of justice have assumed to compel the cohabitation of married people shows that the policy of
the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if
the facts were found to warrant it that court would make a mandatory decree, enforcible by process
of contempt in case of disobedience, requiring the delinquent party to live with the other and render
conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to
enforce such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen,
President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his
regret that the English law on the subject was not the same as that which prevailed in Scotland,
where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights
can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has
ever attempted to make a peremptory order requiring one of the spouses to live with the other; and
that was in a case where a wife was ordered to follow and live with her husband, who had changed
his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby, 36 La. Ann., 70)
was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the
State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148.)
In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of
the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a particular disposition of certain money and effects
Page 51 of 100
then in her possession and to deliver to her husband, as administrator of the ganancial property, all
income, rents, and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the return of the wife
to the marital domicile was sanctioned by any other penalty than the consequences that would be
visited upon her in respect to the use and control of her property; and it does not appear that her
disobedience to that order would necessarily have been followed by imprisonment for contempt.
We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional
and absolute order for the return of the wife to the marital domicile, which is sought in the petitory
part of the complaint; though he is, without doubt, entitled to a judicial declaration that his wife has
presented herself without sufficient cause and that it is her duty to return.
Therefore, reversing the judgment appealed from, in respect both to the original complaint and the
cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the marital home
without sufficient cause; and she is admonished that it is her duty to return. The plaintiff is absolved
from the cross-complaint, without special pronouncement as to costs of either instance. So ordered.
Page 52 of 100
[10]
No. L-19671. November 29, 1965.

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAÑO, ET AL., defendants-appellees.
Husband and wife; Foreign divorce between Filipino citizens decreed after the effectivity of the new
Civil Code; Remarriage of divorced consort.—A foreign divorce between Filipino citizens,, sought and
decreed after the effectivity of the new Civil Code (Republic Act No. 386), is not entitled to
recognition as valid in the Philippines; and neither is the marriage contracted with another party by the
divorced consort, subsequently to the foreign decree of divorce, entitled to validity in this country.
Same; Same; Same; Innocent consort entitled to legal separation.—The marriage of the divorced wife

and her cohabitation with a person other than the lawful husband entitles the latter to a decree of legal
separation conformably to Philippine law.
Same; Same; Same; Invalid divorce entitles innocent consort to recover damages.—The desertion and

securing of an invalid divorce decree by one consort entitles the other to recover damages.
Same; Action for alienation of affections against parents of one consort; Absence of proof of malice.—
An action for alienation of affections against the parents of one consort does not lie in the absence of proof of
malice or unworthy motives on their part
DIRECT APPEAL from a decision of the Court of First Instance of Cebu.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of
Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez,
for legal separation and one million pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escaño," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948* got married * in the University of San
Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta
Escaño, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish
ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of
age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her
parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said
city. The marriage was the culmination of a previous love affair and was duly registered with the
local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply
in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned
out their marital future whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for
Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get
married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the
room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.
Page 53 of 100
Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home
where she admitted that she had already married Pastor. Mamerto and Mena Escaño were
surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the
great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The
following morning, the Escaño spouses sought priestly advice. Father Reynes suggested a
recelebration to validate what he believed to be an invalid marriage, from the standpoint of the
Church, due to the lack of authority from the Archbishop or the parish priest for the officiating
chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February
1948 Mamerto Escaño was handed by a maid, whose name he claims he does not remember, a
letter purportedly coming from San Carlos college students and disclosing an amorous relationship
between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and
thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs.
Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his
job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare,
was not as endearing as her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating
with Pastor (Exh. "1-Escaño"), but her letters became less frequent as the days passed. As of June,
1948 the newlyweds were already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She
did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-
appearance at the hearing (Exh. "B-4").
*In 1950 , Vicenta went to the us and obtained a divorce against her husband*
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City,
and that she intended to return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce against the herein
plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe,
on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of
divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal
dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now
lives with him in California, and, by him, has begotten children. She acquired American citizenship
on 8 August 1958.
CFI OF CEBU -
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents,
Mamerto and Mena Escaño, whom he charged with having dissuaded and discouraged Vicenta
from joining her husband, and alienating her affections, and against the Roman Catholic Church, for
having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal
Page 54 of 100
separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that
they had in any way influenced their daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escaño and Mena Escaño for moral and exemplary damages and attorney's fees against the
plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
ISSUE:
W/N THE CFI ERRED IN NOT GRANTING THE PETITION FOR LEGAL SEPARATION
HELD: AFFIRMATIVE
1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for
damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena
Escaño liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escaño, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and
otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest
(army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said
priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church
and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in
force at the time) expressly provided that —
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore,
not essential to give the marriage civil effects, 3 and this is emphasized by section 27 of said
marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it
was performed, the spouses or one of them believed in good faith that the person who
Page 55 of 100
solemnized the marriage was actually empowered to do so, and that the marriage was
perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of
the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father
Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that her marriage to
plaintiff was valid and binding.
Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's
consent was vitiated by fraud and undue influence, such vices did not render her marriage ab
initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil
court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First
Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escaño remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a
Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of
persons are binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery
of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code
only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it
expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain
absolute divorces outside the Philippines.
Page 56 of 100
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-
resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95
Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escaño's divorce and second marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her fault, for which the husband is entitled
to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit
nor an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery"
(Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in
accord with the previous doctrines and rulings of this court on the subject, particularly those that
were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a
vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines,
in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing
before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-
mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of
particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage of
Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations;
and the circumstance that they afterwards passed for husband and wife in Switzerland until
her death is wholly without legal significance. The claims of the very children to participate in
the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The children of adulterous
relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil
Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis
supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to
Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority
for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action
for legal separation on the part of the innocent consort of the first marriage, that stands undissolved
in Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are
not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as
written by Legislature if they are constitutional. Courts have no right to say that such laws
are too strict or too liberal. (p. 72)
Page 57 of 100
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife,
the late Doña Mena Escaño, alienated the affections of their daughter and influenced her conduct
toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez
about the Escaño's animosity toward him strikes us to be merely conjecture and exaggeration, and
are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escaño" and "Vicenta,"
Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escaño house to visit and court
Vicenta, and the record shows nothing to prove that he would not have been accepted to marry
Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such unexpected event, the parents
of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the
canons of their religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escaño and
his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escaño did not seek to
compel or induce their daughter to assent to the recelebration but respected her decision, or that
they abided by her resolve, does not constitute in law an alienation of affections. Neither does the
fact that Vicenta's parents sent her money while she was in the United States; for it was natural that
they should not wish their daughter to live in penury even if they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been shown, good faith being always
presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right
of a parent to interest himself in the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction between the liability of
parents and that of strangers is only in regard to what will justify interference. A parent
isliable for alienation of affections resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless
he acts maliciously, without justification and from unworthy motives. He is not liable where
he acts and advises his child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not terminating his right and
liberty to interest himself in, and be extremely solicitous for, his child's welfare and
happiness, even where his conduct and advice suggest or result in the separation of the
spouses or the obtaining of a divorce or annulment, or where he acts under mistake or
misinformation, or where his advice or interference are indiscreet or unfortunate, although it
has been held that the parent is liable for consequences resulting from recklessness. He
may in good faith take his child into his home and afford him or her protection and support,
so long as he has not maliciously enticed his child away, or does not maliciously entice or
cause him or her to stay away, from his or her spouse. This rule has more frequently been
applied in the case of advice given to a married daughter, but it is equally applicable in the
case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination
and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably
Page 58 of 100
caused them unrest and anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the face of the proven facts
and circumstances. Court actions are not established for parties to give vent to their prejudices or
spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from
defendant Vicente Escaño, it is proper to take into account, against his patently unreasonable claim
for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was
not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived
together; and (c) that there is evidence that appellant had originally agreed to the annulment of the
marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a consequence of the
indissoluble character of the union that appellant entered into voluntarily and with open eyes rather
than of her divorce and her second marriage. All told, we are of the opinion that appellant should
recover P25,000 only by way of moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena
Escaño, by the court below, we opine that the same are excessive. While the filing of this unfounded
suit must have wounded said defendants' feelings and caused them anxiety, the same could in no
way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;
(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escaño;
(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount
of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of
his wife, the deceased Mena Escaño, P5,000 by way of damages and attorneys' fees. Neither party
to recover costs.
Page 59 of 100
Page 60 of 100
[11]
G.R. No. 187495. April 21, 2014.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGAR JUMAWAN, accused-appellant.
Criminal Law; Rape; The law reclassified rape as a crime against person and removed it from the
ambit of crimes against chastity.—In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article
335 of the RPC. The law reclassified rape as a crime against person and removed it from the ambit of crimes
against chastity. More particular to the present case, and perhaps the law’s most progressive proviso is the
2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing its
perpetration, viz.: Article 266-C. Effect of Pardon.—The subsequent valid marriage between the offended
party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the
offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or
the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the
marriage is void ab initio. Read together with Section 1 of the law, which unqualifiedly uses the term “man”
in defining rape, it is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist’s legal
relationship with his victim.
Same; Same; Marital Rape; In spite of qualms on tagging the crime as ‘marital rape’ due to
conservative Filipino impressions on marriage, the consensus of our lawmakers was clearly to include and
penalize marital rape under the general definition of ‘rape.’—The explicit intent to outlaw marital rape is
deducible from the records of the deliberations of the 10th Congress on the law’s progenitor’s, House Bill No.
6265 and Senate Bill No. 650. In spite of qualms on tagging the crime as ‘marital rape’ due to conservative
Filipino impressions on marriage, the consensus of our lawmakers was clearly to include and penalize marital
rape under the general definition of ‘rape.’
Same; Same; Same; The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed
by R.A. No. 9262, which regards rape within marriage as a form of sexual violence that may be committed by
a man against his wife within or outside the family abode.—The paradigm shift on marital rape in the
Philippine jurisdiction is further affirmed by R.A. No. 9262, which regards rape within marriage as a form of
sexual violence that may be committed by a man against his wife within or outside the family
abode, viz.: Violence against women and their children refers to any act or a series of acts committed by
any person against a woman who is his wife, former wife, or against a woman with whom the person has or
had a sexual or dating relationship, or with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the
following acts: A. “Physical Violence” refers to acts that include bodily or physical harm; B. “Sexual
violence” refers to an act which is sexual in nature, committed against a woman or her child. It includes,
but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a
sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the
victim’s body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her
child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other
harm or coercion; c) Prostituting the woman or child. Statistical figures confirm the above characterization.
Emotional and other forms of nonpersonal violence are the most common type of spousal violence accounting
for 23% incidence among ever-married women. One in seven ever-married women experienced physical
violence by their husbands while eight percent (8%) experienced sexual violence.
Same; Same; Same; R.A. No. 8353 eradicated the archaic notion that marital rape cannot exist because
a husband has absolute proprietary rights over his wife’s body and thus her consent to every act of sexual
intimacy with him is always obligatory or at least, presumed.—The Philippines, as State Party to the CEDAW,
Page 61 of 100
recognized that a change in the traditional role of men as well as the role of women in society and in the
family is needed to achieve full equality between them. Accordingly, the country vowed to take all appropriate
measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices, customs and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and women. One of such measures is
R.A. No. 8353 insofar as it eradicated the archaic notion that marital rape cannot exist because a husband has
absolute proprietary rights over his wife’s body and thus her consent to every act of sexual intimacy with him
is always obligatory or at least, presumed. Another important international instrument on gender equality is
the UN Declaration on the Elimination of Violence Against Women, which was promulgated by the UN
General Assembly subsequent to the CEDAW. The Declaration, in enumerating the forms of gender-based
violence that constitute acts of discrimination against women, identified ‘marital rape’ as a species of sexual
violence.
Same; Same; Same; A man who penetrates her wife without her consent or against her will commits
sexual violence upon her, and the Philippines, as a State Party to the Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW) and its accompanying Declaration, defines and penalizes
the act as rape under R.A. No. 8353.—Clearly, it is now acknowledged that rape, as a form of sexual violence,
exists within marriage. A man who penetrates her wife without her consent or against her will commits sexual
violence upon her, and the Philippines, as a State Party to the CEDAW and its accompanying Declaration,
defines and penalizes the act as rape under R.A. No. 8353. A woman is no longer the chattel-antiquated
practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property,
he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself.
He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and
free consent. Surely, the Philippines cannot renege on its international commitments and accommodate
conservative yet irrational notions on marital activities that have lost their relevance in a progressive society. It
is true that the Family Code, obligates the spouses to love one another but this rule sanctions affection and
sexual intimacy, as expressions of love, that are both spontaneous and mutual and not the kind which is
unilaterally exacted by force or coercion.
Same; Same; Same; The delicate and reverent nature of sexual intimacy between a husband and wife
excludes cruelty and coercion.—The delicate and reverent nature of sexual intimacy between a husband and
wife excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function which
enlivens the hope of procreation and ensures the continuation of family relations. It is an expressive interest in
each other’s feelings at a time it is needed by the other and it can go a long way in deepening marital
relationship. When it is egoistically utilized to despoil marital union in order to advance a felonious urge for
coitus by force, violence or intimidation, the Court will step in to protect its lofty purpose, vindicate justice
and protect our laws and State policies. Besides, a husband who feels aggrieved by his indifferent or
uninterested wife’s absolute refusal to engage in sexual intimacy may legally seek the court’s intervention to
declare her psychologically incapacitated to fulfill an essential marital obligation. But he cannot and should
not demand sexual intimacy from her coercively or violently.
Same; Same; Same; Equal Protection of the Laws; To treat marital rape cases differently from
nonmarital rape cases in terms of the elements that constitute the crime and in the rules for their proof,
infringes on the equal protection clause.—To treat marital rape cases differently from nonmarital rape cases in
terms of the elements that constitute the crime and in the rules for their proof, infringes on the equal protection
clause. The Constitutional right to equal protection of the laws ordains that similar subjects should not be
treated differently, so as to give undue favor to some and unjustly discriminate against others; no person or
class of persons shall be denied the same protection of laws, which is enjoyed, by other persons or other
classes in like circumstances.
Same; Same; Same; Same; The definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the perpetrator’s own
Page 62 of 100
spouse.—As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the perpetrator’s own
spouse. The single definition for all three forms of the crime shows that the law does not distinguish between
rape committed in wedlock and those committed without a marriage. Hence, the law affords protection to
women raped by their husband and those raped by any other man alike.
Same; Same; Same; A marriage license should not be viewed as a license for a husband to forcibly rape
his wife with impunity.—The Court adheres to and hereby adopts the rationale
in Liberta in rejecting the argument akin to those raised by herein accused-appellant. A marriage license
should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has
the same right to control her own body, as does an unmarried woman. She can give or withhold her consent to
a sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case she
refuses.
Same; Same; Same; The human rights of women include their right to have control over and decide
freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of
coercion, discrimination and violence.—The human rights of women include their right to have control over
and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive
health, free of coercion, discrimination and violence. Women do not divest themselves of such right by
contracting marriage for the simple reason that human rights are inalienable. In fine, since the law does not
separately categorize marital rape and nonmarital rape nor provide for different definition or elements for
either, the Court, tasked to interpret and apply what the law dictates, cannot trudge the forbidden sphere of
judicial legislation and unlawfully divert from what the law sets forth. Neither can the Court frame distinct or
stricter evidentiary rules for marital rape cases as it would inequitably burden its victims and unreasonably and
irrationally classify them differently from the victims of nonmarital rape. Indeed, there exists no legal or
rational reason for the Court to apply the law and the evidentiary rules on rape any differently if the aggressor
is the woman’s own legal husband. The elements and quantum of proof that support a moral certainty of guilt
in rape cases should apply uniformly regardless of the legal relationship between the accused and his accuser.
Same; Same; Evidence; In rape cases, the conviction of the accused rests heavily on the credibility of
the victim.—In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence,
the strict mandate that all courts must examine thoroughly the testimony of the offended party. While the
accused in a rape case may be convicted solely on the testimony of the complaining witness, courts are,
nonetheless, duty-bound to establish that their reliance on the victim’s testimony is justified. Courts must
ensure that the testimony is credible, convincing, and otherwise consistent with human nature. If the testimony
of the complainant meets the test of credibility, the accused may be convicted on the basis thereof.
Remedial Law; Evidence; Witnesses; It is settled that the evaluation by the trial court of the credibility
of witnesses and their testimonies are entitled to the highest respect.—It is settled that the evaluation by the
trial court of the credibility of witnesses and their testimonies are entitled to the highest respect. This is in
view of its inimitable opportunity to directly observe the witnesses and their deportment, conduct and attitude,
especially during cross-examination. Thus, unless it is shown that its evaluation was tainted with arbitrariness
or certain facts of substance and value
114have been plainly overlooked, misunderstood, or misapplied, the same will not be disturbed on
appeal.
Criminal Law; Rape; Prosecution of Offenses; In the prosecution of rape cases, the essential element
that must be proved is the absence of the victim’s consent to the sexual congress.—Entrenched is the rule that
in the prosecution of rape cases, the essential element that must be proved is the absence of the victim’s
consent to the sexual congress. Under the law, consent is absent when: (a) it was wrestled from the victim by
force, threat or intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable
of giving free and voluntary consent because he/she is deprived of reason or otherwise unconscious or that the
offended party is under 12 years of age or is demented.
Page 63 of 100
Same; Same; As an element of rape, force or intimidation need not be irresistible; it may be just enough
to bring about the desired result.—As an element of rape, force or intimidation need not be irresistible; it may
be just enough to bring about the desired result. What is necessary is that the force or intimidation be sufficient
to consummate the purpose that the accused had in mind or is of such a degree as to impel the defenseless and
hapless victim to bow into submission.
Same; Same; Medical Certificates; It is not the presence or absence of blood on the victim’s underwear
that determines the fact of rape inasmuch as a medical certificate is dispensable evidence that is not
necessary to prove rape.—Contrary to the accused-appellant’s allusions, the absence of blood traces in KKK’s
panties or the lack of a medical certificate do not negate rape. It is not the presence or absence of blood on the
victim’s underwear that determines the fact of rape inasmuch as a medical certificate is dispensable evidence
that is not necessary to prove rape. These details do not pertain to the elements that produce the gravamen of
the offense that is — sexual intercourse with a woman against her will or without her consent.
Same; Same; It must be stressed that rape is essentially committed in relative isolation, thus, it is
usually only the victim who can testify with regard to the fact of the forced sexual intercourse.—The accused-
appellant’s assertion that MMM and OOO’s testimonies lacked probative value as they did not witness the
actual rape is bereft of merit. It must be stressed that rape is essentially committed in relative isolation, thus, it
is usually only the victim who can testify with regard to the fact of the forced sexual intercourse. Hence, the
probative value of MMM and OOO’s testimonies rest not on whether they actually witnessed the rape but on
whether their declarations were in harmony with KKK’s narration of the circumstances, preceding, subsequent
to and concurrent with, the rape incidents.
Same; Same; Marital Rape; Fear of reprisal thru social humiliation which is the common factor that
deter rape victims from reporting the crime to the authorities is more cumbersome in marital rape cases.—
Fear of reprisal thru social humiliation which is the common factor that deter rape victims from reporting the
crime to the authorities is more cumbersome in marital rape cases. This is in view of the popular yet outdated
belief that it is the wife’s absolute obligation to submit to her husband’s carnal desires. A husband raping his
own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic trouble. Unfamiliarity
with or lack of knowledge of the law criminalizing marital rape, the stigma and public scrutiny that could have
befallen KKK and her family had the intervention of police authorities or even the neighbors been sought, are
acceptable explanations for the failure or delay in reporting the subject rape incidents.
Same; Alibi; Alibi is one of the weakest defenses not only because it is inherently frail and unreliable,
but also because it is easy to fabricate and difficult to check or rebut.—Alibi is one of the weakest defenses
not only because it is inherently frail and unreliable, but also because it is easy to fabricate and difficult to
check or rebut. It cannot prevail over the positive identification of the accused by eyewitnesses who had no
improper motive to testify falsely. For the defense of alibi to prosper, the accused must prove not only that he
was at some other place at the time of the commission of the crime, but also that it was physically impossible
for him to be at the locus delicti or within its immediate vicinity. Physical impossibility refers not only to the
geographical distance between the place where the accused was and the place where the crime was committed
when the crime transpired, but more importantly, the facility of access between the two places.
Same; Same; Denials; Between the accused-appellant’s alibi and denial, and the positive identification
and credible testimony of the victim, and her two daughters, the Court must give weight to the latter.—
Between the accused-appellant’s alibi and denial, and the positive identification and credible testimony of the
victim, and her two daughters, the Court must give weight to the latter, especially in the absence of ill motive
on their part to falsely testify against the accused-appellant.
Same; Rape; Penalties; Parole; Persons convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by reason of R.A. No. 9346, shall not be eligible for
parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as amended.—The Court
Page 64 of 100
affirms the penalty of reclusion perpetua, for each count of rape, meted upon the accused-appellant for being
in accord with Article 266-A in relation to 266-B of the RPC. Further, he shall not be eligible for parole
pursuant to Section 3 of R.A. No. 9346, which states that “persons convicted of offenses punished
with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall
not be eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as
amended.”
Same; Same; Words and Phrases; Rape is a crime that evokes global condemnation because it is an
abhorrence to a woman’s value and dignity as a human being.—Rape is a crime that evokes global
condemnation because it is an abhorrence to a woman’s value and dignity as a human being. It respects no
time, place, age, physical condition or social status. It can happen anywhere and it can happen to anyone.
Even, as shown in the present case, to a wife, inside her time-honored fortress, the family home, committed
against her by her husband who vowed to be her refuge from cruelty. The herein pronouncement is an
affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive
husbands.
Same; Same; Marital Rape; Husbands are reminded that marriage is not a license to forcibly rape their
wives.—Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A
husband does not own his wife’s body by reason of marriage. By marrying, she does not divest herself of the
human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold
her consent to marital coitus. A husband aggrieved by his wife’s unremitting refusal to engage in sexual
intercourse cannot resort to felonious force or coercion to make her yield. He can seek succor before the
Family Courts that can determine whether her refusal constitutes psychological incapacity justifying an
annulment of the marriage. Sexual intimacy is an integral part of marriage because it is the spiritual and
biological communion that achieves the marital purpose of procreation. It entails mutual love and self-giving
and as such it contemplates only mutual sexual cooperation and never sexual coercion or imposition.
AUTOMATIC REVIEW of a decision of the Court of Appeals.
DECISION
"Among the duties assumed by the husband are his duties to love, cherish and protect his wife, to
give her a home, to provide her with the comforts and the necessities of life within his means, to
treat her kindly and not cruelly or inhumanely. He is bound to honor her x x x; it is his duty not only
to maintain and support her, but also to protect her from oppression and wrong." 1
REYES, J.:
Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the
realm of marriage, if not consensual, is rape. This is the clear State policy expressly legislated in
Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or
the Anti-Rape Law of 1997.
The Case
This is an automatic review2 of the Decision3 dated July 9, 2008 of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 00353, which affirmed the Judgment 4 dated April 1, 2002 of the Regional Trial
Court (RTC) of Cagayan de Oro City, Branch 19, in Criminal Case Nos. 99-668 and 99-669
convicting him to suffer the penalty of reclusion perpetua for each count.
The Facts
Page 65 of 100
Accused-appellant and his wife, KKK,5 were married on October 18, 1975. They Ii ved together
since then and raised their four (4) children6 as they put up several businesses over the years.
On February 19, 1999, KKK executed a Complaint-Affidavit, 7 alleging that her husband, the
accused-appellant, raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2, Villa
Ernesto, Gusa, Cagayan de Oro City, and that on December 12, 1998, the accused-appellant boxed
her shoulder for refusing to have sex with him.
On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint
Resolution,8 finding probable cause for grave threats, less serious physical injuries and rape and
recommending that the appropriate criminal information be filed against the accused-appellant.
On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as
Criminal Case No. 99-6689 and Criminal Case No. 99-669. 10 The Information in Criminal Case No.
99-668 charged the accused-appellant as follows:
That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter[']s will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.
Meanwhile the Information in Criminal Case No. 99-669 reads:
That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter's will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.
The accused-appellant was arrested upon a warrant issued on July 21, 1999. 11 On August 18, 1999,
the accused-appellant filed a Motion for Reinvestigation, 12 which was denied by the trial court in an
Order13 dated August 19, 1999. On even date, the accused-appellant was arraigned and he entered
a plea of not guilty to both charges.14
On January 10, 2000, the prosecution filed a Motion to Admit Amended Information 15 averring that
the name of the private complainant was omitted in the original informations for rape. The motion
also stated that KKK, thru a Supplemental Affidavit dated November 15, 1999, 16 attested that the
true dates of commission of the crime are October 16, 1998 and October 1 7, 1998 thereby
modifying the dates stated in her previous complaint-affidavit. The motion was granted on January
18, 2000.17 Accordingly, the criminal informations were amended as follows:
Criminal Case No. 99-668:
That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.
Page 66 of 100
Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 18
Criminal Case No. 99-669:
That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.
Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 19
The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both
indictments and a joint trial of the two cases forthwith ensued.
Version of the prosecution
The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM and
000, which, together with pertinent physical evidence, depicted the following events:
KKK met the accused-appellant at the farm of her parents where his father was one of the laborers.
They got married after a year of courtship. 20 When their first child, MMM, was born, KKK and the
accused-appellant put up a sari-sari store. 21 Later on, they engaged in several other businesses
-trucking, rice mill and hardware. KKK managed the businesses except for the rice mill, which,
ideally, was under the accused-appellant's supervision with the help of a trusted employee. In
reality, however, he merely assisted in the rice mill business by occasionally driving one of the
trucks to haul goods.22
Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's
dedication. Even the daughters observed the disproportionate labors of their parents. 23 He would
drive the trucks sometimes but KKK was the one who actively managed the businesses. 24
She wanted to provide a comfortable life for their children; he, on the other hand, did not acquiesce
with that objective.25
In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa,
Cagayan de Oro City.26 Three of the children transferred residence therein while KKK, the accused-
appellant and one of their sons stayed in Dangcagan, Bukidnon. She shuttled between the two
places regularly and sometimes he accompanied her. 27 In 1998, KKK stayed in Gusa, Cagayan De
Oro City most of the days of the week. 28 On Wednesdays, she went to Dangcagan, Bukidnon to
procure supplies for the family store and then returned to Cagayan de Oro City on the same day. 29
Conjugal intimacy did not really cause marital problems between KKK and the accused-appellant. It
was, in fact, both frequent and fulfilling. He treated her well and she, of course, responded with
equal degree of enthusiasm.30 However, in 1997, he started to be brutal in bed. He would
immediately remove her panties and, sans any foreplay, insert her penis in her vagina. His abridged
method of lovemaking was physically painful for her so she would resist his sexual ambush but he
would threaten her into submission.31
In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she
failed to attend to him. She was preoccupied with financial problems in their businesses and a bank
Page 67 of 100
loan. He wanted KKK to stay at home because "a woman must stay in the house and only good in
bed (sic) x x x." She disobeyed his wishes and focused on her goal of providing a good future for the
children.32
Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-appellant
slept together in Cebu City where the graduation rites of their eldest daughter were held. By October
14, 1998, the three of them were already back in Cagayan de Oro City. 33
On October 16, 1998, the accused-appellant, his wife KKK and their children went about their nightly
routine. The family store in their residence was closed at about 9:00 p.m. before supper was taken.
Afterwards, KKK and the children went to the girls' bedroom at the mezzanine of the house to pray
the rosary while the accused-appellant watched television in the living room. 34 OOO and MMM then
prepared their beds. Soon after, the accused-appellant fetched KKK and bid her to come with him to
their conjugal bedroom in the third floor of the house. KKK complied. 35
Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not lie
thereon with the accused-appellant and instead, rested separately in a cot near the bed. Her
reclusive behavior prompted him to ask angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed."36
KKK insisted to stay on the cot and explained that she had headache and abdominal pain due to her
forthcoming menstruation. Her reasons did not appease him and he got angrier. He rose from the
bed, lifted the cot and threw it against the wall causing KKK to fall on the floor. Terrified, KKK stood
up from where she fell, took her pillow and transferred to the bed. 37
The accused-appellant then lay beside KKK and not before long, expressed his desire to copulate
with her by tapping his fingers on her lap. She politely declined by warding off his hand and
reiterating that she was not feeling well. 38
The accused-appellant again asserted his sexual yearning and when KKK tried to resist by holding
on to her panties, he pulled them down so forcefully they tore on the sides. 39 KKK stayed defiant by
refusing to bend her legs.40
The accused-appellant then raised KKK's daster, 41 stretched her legs apart and rested his own legs
on them. She tried to wrestle him away but he held her hands and succeeded in penetrating her. As
he was carrying out his carnal desires, KKK continued to protest by desperately shouting: "[D]on 't
do that to me because I'm not feeling well." 42
With a concrete wall on one side and a mere wooden partition on the other enclosing the spouses'
bedroom,43 KKK's pleas were audible in the children's bedroom where MMM lay awake.
Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity on
me,"44 MMM woke up 000 who prodded her to go to their parents' room. 45 MMM hurriedly climbed
upstairs, vigorously knocked on the door of her parents' bedroom and inquired: "Pa, why is it that
Mama is crying?"46 The accused-appellant then quickly put on his briefs and shirt, partly opened the
door and said: "[D]on 't interfere because this is a family trouble," before closing it again. 47 Since she
heard her mother continue to cry, MMM ignored his father's admonition, knocked at the bedroom
door again, and then kicked it.48 A furious accused-appellant opened the door wider and rebuked
MMM once more: "Don't interfere us. Go downstairs because this is family trouble!" Upon seeing
KKK crouching and crying on top of the bed, MMM boldly entered the room, approached her mother
Page 68 of 100
and asked: "Ma, why are you crying?" before asking her father: "Pa, what happened to Mama why is
it that her underwear is torn[?]"49
When MMM received no definite answers to her questions, she helped her mother get up in order to
bring her to the girls' bedroom. KKK then picked up her tom underwear and covered herself with a
blanket.50 However, their breakout from the room was not easy. To prevent KKK from leaving, the
accused-appellant blocked the doorway by extending his arm towards the knob. He commanded
KKK to "[S]tay here, you sleep in our room," when the trembling KKK pleaded: "Eddie, allow me to
go out." He then held KKK's hands but she pulled them back. Determined to get away, MMM leaned
against door and embraced her mother tightly as they pushed their way out. 51
In their bedroom, the girls gave their mother some water and queried her as to what
happened.52 KKK relayed: "[Y]our father is an animal, a beast; he forced me to have sex with him
when I'm not feeling well." The girls then locked the door and let her rest." 53
The accused-appellant's aggression recurred the following night. After closing the family store on
October 17, 1998, KKK and the children took their supper. The accused-appellant did not join them
since, according to him, he already ate dinner elsewhere. After resting for a short while, KKK and
the children proceeded to the girls' bedroom and prayed the rosary. KKK decided to spend the night
in the room's small bed and the girls were already fixing the beddings when the accused-appellant
entered.
"Why are you sleeping in the room of our children", he asked KKK, who responded that she
preferred to sleep with the children. 54 He then scoffed: "Its alright if you will not go with me, anyway,
there are women that could be paid [P] 1,000.00." She dismissed his comment by turning her head
away after retorting: "So be it." After that, he left the room. 55
He returned 15 minutes later56 and when KKK still refused to go with him, he became infuriated. He
lifted her from the bed and attempted to carry her out of the room as he exclaimed: "Why will you
sleep here[?] Lets go to our bedroom." When she defied him, he grabbed her short pants causing
them to tear apart.57 At this point, MMM interfered, "Pa, don't do that to Mama because we are in
front of you."58
The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven in
front of you, I can have sex of your mother [sic J because I'm the head of the family." He then
ordered his daughters to leave the room. Frightened, the girls obliged and went to the staircase
where they subsequently heard the pleas of their helpless mother resonate with the creaking bed. 59
The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled KKK's
short pants and panties. He paid no heed as she begged, "[D]on 't do that to me, my body is still
aching and also my abdomen and I cannot do what you wanted me to do [sic]. I cannot withstand
sex."60
After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her and
forced himself inside her. Once gratified, the accused-appellant put on his short pants and briefs,
stood up, and went out of the room laughing as he conceitedly uttered: "[I]t s nice, that is what you
deserve because you are [a] flirt or fond of sex." He then retreated to the masters' bedroom. 61
Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but
found the door locked. MMM pulled out a jalousie window, inserted her arm, reached for the
doorknob inside and disengaged its lock. Upon entering the room, MMM and OOO found their
Page 69 of 100
mother crouched on the bed with her hair disheveled. The girls asked: "Ma, what happened to you,
why are you crying?" KKK replied: "[Y}our father is a beast and animal, he again forced me to have
sex with him even if I don't feel well. "62
Version of the defense
The defense spun a different tale. The accused-appellant's father owned a land adjacent to that of
KKK's father. He came to know KKK because she brought food for her father's laborers. When they
got married on October 18, 1975, he was a high school graduate while she was an elementary
graduate.
Their humble educational background did not deter them from pursuing a comfortable life. Through
their joint hard work and efforts, the couple gradually acquired personal properties and established
their own businesses that included a rice mill managed by the accused-appellant. He also drove
their trucks that hauled coffee, copra, or com.63
The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on
those dates he was in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an accident
somewhere in Angeles Ranch, Maluko, Manolo Fortich, Bukidnon. He left the truck by the roadside
because he had to attend MMM's graduation in Cebu on October 12 with KKK. When they returned
to Bukidnon on October 14, he asked KKK and MMM to proceed to Cagayan de Oro City and just
leave him behind so he can take care of the truck and buy some com. 64
Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the above
claims. According to him, on October 16, 1998, the accused-appellant was within the vicinity of the
rice mill's loading area in Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he
and the accused-appellant were in Dangcagan, Bukidnon, loading sacks of com into the truck. They
finished loading at 3 :00 p.m. The accused-appellant then instructed Equia to proceed to Maluko,
Manolo Fortich, Bukidnon while the former attended a fiesta in New Cebu, Kianggat, Dangcagan,
Bukidnon. At around 4:00 p.m., Equia, together with a helper and a mechanic, left for Maluko in
order to tow the stalled truck left there by the accused-appellant in October 7 and thereafter, bring it
to Cagayan de Oro City together with the separate truck loaded with com.
They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and hoist it
to the towing bar of the other truck. At around 10:00 p.m., the accused-appellant arrived in Maluko.
The four of them then proceeded to Cagayan de Oro City where they arrived at 3 :00 a.m. of
October 18, 1998. The accused-appellant went to Gusa while the other three men brought the
damaged truck to Cugman.65
The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge
because he took over the control and management of their businesses as well as the possession of
their pick-up truck in January 1999. The accused-appellant was provoked to do so when she failed
to account for their bank deposits and business earnings. The entries in their bank account showed
the balance of ₱3,190,539.83 on October 31, 1996 but after only a month or on November 30, 1996,
the amount dwindled to a measly ₱9,894.88. 66 Her failure to immediately report to the police also
belies her rape allegations.67
KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually detected
from her odd behavior. While in Cebu on October 12, 1998 for MMM's graduation rites, the accused-
appellant and KKK had sexual intercourse. He was surprised when his wife asked him to get a
napkin to wipe her after having sex. He tagged her request as "high-tech," because they did not do
Page 70 of 100
the same when they had sex in the past. KKK had also become increasingly indifferent to him.
When he arrives home, it was an employee, not her, who opened the door and welcomed him. She
prettied herself and would no longer ask for his permission whenever she went out. 68
Bebs,69 KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several love
letters purportedly addressed to Bebs but were actually intended for KKK. 70
KKK had more than ten paramours some of whom the accused-appellant came to know as: Arsenio,
Jong-Jong, Joy or Joey, somebody from the military or the Philippine National Police, another one is
a government employee, a certain Fernandez and three other priests. 71 Several persons told him
about the paramours of his wife but he never confronted her or them about it because he trusted
her.72
What further confirmed his suspicions was the statement made by OOO on November 2, 1998. At
that time, OOO was listening loudly to a cassette player. Since he wanted to watch a television
program, he asked OOO to tum down the volume of the cassette player. She got annoyed,
unplugged the player, spinned around and hit the accused-appellant's head with the socket. His
head bled. An altercation between the accused-appellant and KKK thereafter followed because the
latter took OOO's side. During the argument, OOO blurted out that KKK was better off without the
accused-appellant because she had somebody young, handsome, and a businessman unlike the
accused-appellant who smelled bad, and was old, and ugly. 73
KKK also wanted their property divided between them with three-fourths thereof going to her and
one-fourth to the accused-appellant. However, the separation did not push through because the
accused-appellant's parents intervened.74 Thereafter, KKK pursued legal separation from the
accused-appellant by initiating Barangay Case No. 00588-99 before the Office of Lupong
Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a Certificate to File Action
dated February 18, 1999.75
Ruling of the RTC
In its Judgment76 dated April 1, 2002, the RTC sustained the version proffered by the prosecution by
giving greater weight and credence to the spontaneous and straightforward testimonies of the
prosecution's witnesses. The trial court also upheld as sincere and genuine the two daughters'
testimonies, as it is not natural in our culture for daughters to testify against their own father for a
crime such as rape if the same was not truly committed.
The trial court rejected the version of the defense and found unbelievable the accused-appellant's
accusations of extra-marital affairs and money squandering against KKK. The trial court shelved the
accused-appellant's alibi for being premised on inconsistent testimonies and the contradicting
declarations of the other defense witness, Equia, as to the accused-appellant's actual whereabouts
on October 16, 1998. Accordingly, the RTC ruling disposed as follows:
WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable
doubt of the two (2) separate charges of rape and hereby sentences him to suffer the penalty of
reclusion perpetua for each, to pay complainant [P]50,000.00 in each case as moral damages,
indemnify complainant the sum of (P]75,000.00 in each case, [P]50,000.00 as exemplary damages
and to pay the costs.
SO ORDERED.77
Page 71 of 100
Ruling of the CA
In its Decision78 dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that Section
14, Rule 110 of the Rules of Criminal Procedure, sanctioned the amendment of the original
informations. Further, the accused-appellant was not prejudiced by the amendment because he was
re-arraigned with respect to the amended informations.
The CA found that the prosecution, through the straightforward testimony of the victim herself and
the corroborative declarations of MMM and OOO, was able to establish, beyond reasonable doubt,
all the elements of rape under R.A. No. 8353. The accused-appellant had carnal knowledge of KKK
by using force and intimidation.
The CA also ruled that KKK's failure to submit herself to medical examination did not negate the
commission of the crime because a medical certificate is not necessary to prove rape.
The CA rejected the accused-appellant's argument that since he and KKK are husband and wife
with mutual obligations of and right to sexual intercourse, there must be convincing physical
evidence or manifestations of the alleged force and intimidation used upon KKK such as bruises.
The CA explained that physical showing of external injures is not indispensable to prosecute and
convict a person for rape; what is necessary is that the victim was forced to have sexual intercourse
with the accused.
In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only
reinforces the truthfulness of KKK's accusations because no wife in her right mind would accuse her
husband of having raped her if it were not true.
The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated that
she only found out that a wife may charge his husband with rape when the fiscal investigating her
separate complaint for grave threats and physical injuries told her about it.
Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it was
physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crimes, considering that Dangcagan, Bukidnon, the place where he allegedly
was, is only about four or five hours away. Accordingly, the decretal portion of the decision read:
WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED.
SO ORDERED.79
Hence, the present review. In the Court Resolution 80 dated July 6, 2009, the Court notified the
parties that, if they so desire, they may file their respective supplemental briefs. In a Manifestation
and Motion81 dated September 4, 2009, the appellee, through the Office of the Solicitor General,
expressed that it intends to adopt its Brief before the CA. On April 16, 2012, the accused-appellant,
through counsel, filed his Supplemental Brief, arguing that he was not in Cagayan de Oro City when
the alleged rape incidents took place, and the presence of force, threat or intimidation is negated by:
(a) KKK's voluntary act of going with him to the conjugal bedroom on October 16, 1998; (b) KKK's
failure to put up resistance or seek help from police authorities; and ( c) the absence of a medical
certificate and of blood traces in KKK's panties.82
Our Ruling
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I. Rape and marriage: the historical connection
The evolution of rape laws is actually traced to two ancient English practices of 'bride capture'
whereby a man conquered a woman through rape and 'stealing an heiress' whereby a man
abducted a woman and married her.83
The rape laws then were intended not to redress the violation of the woman's chastity but rather to
punish the act of obtaining the heiress' property by forcible marriage 84 or to protect a man's valuable
interest in his wife's chastity or her daughter's virginity. 85
If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man raped
his wife, he was merely using his property.86
Women were subjugated in laws and society as objects or goods and such treatment was justified
under three ideologies.
Under the chattel theory prevalent during the 6th century, a woman was the property of her father
until she marries to become the property of her husband. 87 If a man abducted an unmarried woman,
he had to pay the owner, and later buy her from the owner; buying and marrying a wife were
synonymous.88
From the 11th century to the 16th century, a woman lost her identity upon marriage and the law
denied her political power and status under the feudal doctrine of coverture. 89
A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring
order within the family.90
This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying,
the woman becomes one with her husband. She had no right to make a contract, sue another, own
personal property or write a will.91
II. The marital exemption rule
In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable
implied consent theory that would later on emerge as the marital exemption rule in rape. He stated
that:
[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract.92
The rule was observed in common law countries such as the United States of America (USA) and
England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would
be rape if committed against a woman not his wife. 93 In those jurisdictions, rape is traditionally
defined as "the forcible penetration of the body of a woman who is not the wife of the perpetrator." 94
The first case in the USA that applied the marital exemption rule was Commonwealth v.
Fogerty95 promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it
would always be a defense in rape to show marriage to the victim. Several other courts adhered to a
similar rationale with all of them citing Hale's theory as basis. 96
Page 73 of 100
The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed
with absolute immunity from prosecution for the rape of his wife. 97 The privilege was personal and
pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or
abets another person in raping her.98
In the 1970s, the rule was challenged by women's movements in the USA demanding for its
abolition for being violative of married women's right to be equally protected under rape laws. 99
In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the
rule in cases where the husband and wife are living apart pursuant to a court order "which by its
terms or in its effects requires such living apart," or a decree, judgment or written agreement of
separation.100
In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New
York declared the same unconstitutional in People v. Liberta 101 for lack of rational basis in
distinguishing between marital rape and non-marital rape. The decision, which also renounced
Hale's irrevocable implied consent theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing between marital rape and nonmarital rape.
The various rationales which have been asserted in defense of the exemption are either based upon
archaic notions about the consent and property rights incident to marriage or are simply unable to
withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the
New York statute to be unconstitutional.
Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has
been cited most frequently in support of the marital exemption. x x x Any argument based on a
supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does
not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and
frequently causes severe, long-lasting physical and psychic harm x x x. To ever imply consent to
such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never
been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly, then,
a marriage license should not be viewed as a license for a husband to forcibly rape his wife with
impunity. A married woman has the same right to control her own body as does an unmarried
woman x x x. If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he
should seek relief in the courts governing domestic relations, not in "violent or forceful self-help x x
x."
The other traditional justifications for the marital exemption were the common-law doctrines that a
woman was the property of her husband and that the legal existence of the woman was
"incorporated and consolidated into that of the husband x x x." Both these doctrines, of course, have
long been rejected in this State. Indeed, "[nowhere] in the common-law world - [or] in any modem
society - is a woman regarded as chattel or demeaned by denial of a separate legal identity and the
dignity associated with recognition as a whole human being x x x." 102 (Citations omitted)
By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of
Columbia, outlawing the act without exemptions. Meanwhile, the 33 other states granted some
exemptions to a husband from prosecution such as when the wife is mentally or physically impaired,
unconscious, asleep, or legally unable to consent.103
III. Marital Rape in the Philippines
Page 74 of 100
Interestingly, no documented case on marital rape has ever reached this Court until now. It appears,
however, that the old provisions of rape under Article 335 of the RPC adhered to Hale's irrevocable
implied consent theory, albeit in a limited form. According to Chief Justice Ramon C. Aquino, 104 a
husband may not be guilty of rape under Article 335 of Act No. 3815 but, in case there is legal
separation, the husband should be held guilty of rape if he forces his wife to submit to sexual
intercourse.105
In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the
Elimination of all Forms of Discrimination Against Women (UN-CEDAW). 106 Hailed as the first
international women's bill of rights, the CEDAW is the first major instrument that contains a ban on
all forms of discrimination against women. The Philippines assumed the role of promoting gender
equality and women's empowerment as a vital element in addressing global concerns. 107 The
country also committed, among others, to condemn discrimination against women in all its forms,
and agreed to pursue, by all appropriate means and without delay, a policy of eliminating
discrimination against women and, to this end, undertook:
(a) To embody the principle of the equality of men and women in their national constitutions
or other appropriate legislation if not yet incorporated therein and to ensure, through law and
other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;
xxxx
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women. 108
In compliance with the foregoing international commitments, the Philippines enshrined the principle
of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof,
thus:
Sec. 11. The State values the dignity of every human person and guarantees full respect for human
rights.
xxxx
Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men. The Philippines also acceded to adopt and
implement the generally accepted principles of international law such as the CEDA W and its allied
issuances, viz:
Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts
the generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis
ours)
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The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No.
8353 eradicated the stereotype concept of rape in Article 335 of the RPC. 109 The law reclassified
rape as a crime against person and removed it from the ambit of crimes against chastity. More
particular to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph
of Section 2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz:
Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall
extinguish the criminal action or the penalty imposed.
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not
be extinguished or the penalty shall not be abated if the marriage is void ab initio.
Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining rape, it
is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist's legal
relationship with his victim, thus:
Article 266-A. Rape: When And How Committed. - Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.
The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the
10th Congress on the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite of
qualms on tagging the crime as 'marital rape' due to conservative Filipino impressions on marriage,
the consensus of our lawmakers was clearly to include and penalize marital rape under the general
definition of 'rape,' viz:
MR. DAMASING: Madam Speaker, Your Honor, one more point
of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to
marital rape. But under Article 266-C, it says here: "In case it is the legal husband who is the
offender... " Does this presuppose that there is now marital rape? x x x.
MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private
practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as
a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for
rape. Even jurisprudence, we don't have any jurisprudence that prohibits a wife from suing a
husband. That is why even if we don't provide in this bill expanding the definition of crime that is now
being presented for approval, Madam Speaker, even if we don't provide here for marital rape, even
if we don't provide for sexual rape, there is the right of the wife to go against the husband. The wife
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can sue the husband for marital rape and she cannot be prevented from doing so because in this
jurisdiction there is no law that prohibits her from doing so. This is why we had to put second
paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction
there is marital rape even if we don't provide it here, then we must provide for something that will
unify and keep the cohesion of the family together that is why we have the second paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No.
6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault.
MR. LARA: That is correct, Madam Speaker.
MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your
Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph,
quote: "In case it is the legal husband who is the offender, this refers to marital rape filed against the
husband? Is that correct?
MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.
MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?
MR. LARA: Sexual assault, Madam Speaker.
MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that.
Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why
I am sorry that our House version which provided for sexual assault was not carried by the Senate
version because all sexual crimes under this bicameral conference committee report are all now
denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty
is only prision mayor. So there is marital rape, Your Honor, is that correct?
xxxx
MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the
husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape,
call it marital sexual assault because of the sanctity of marriage. x x x. 110 (Emphasis ours)
HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.
HON. ROCO: Yeah. No. But I think there is also no specific mention.
HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.
xxxx
HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly
contained in the second paragraph. x x x So marital rape actually was in the House version x x x.
But it was not another definition of rape. You will notice, it only says, that because you are the lawful
husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your
wife until she's blue. And if the wife complains she was raped, I guess that, I mean, you just cannot
raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can
beat you up? That's all it means. That is why if we stop referring to it as marital rape, acceptance is
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easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is
saying is you're [the] husband but you cannot beat me up. x x x. That's why to me it's not alarming. It
was just a way of saying you're [the] husband, you cannot say when I am charged with rape x x x.
PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]
HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can
have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave
abuse of authority, I don't know how that cannot apply. Di ba yung, or putting an instrument into the,
yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same
definition x x x.
xxxx
HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is
implicit already in the first proviso. It implies na there is an instance when a husband can be charged
[with] rape x x x.
HON. ROXAS: Otherwise, silent na.
HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this
rule of evidence is now transport[ed], put into 266-F, the effect of pardon.
PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page
8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of
evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di
ha? I think that should be made clear. x x x.
xxxx
HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you're
[the] legal husband, Jesus Christ, don't beat up to have sex. I almost want, you are my wife, why do
you have to beat me up.
So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can
face up, I hope, to the women and they would understand that it is half achieved.
HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new
crime but instead, we are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he
is husband is not, does not negate.111
CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only
disagreement now is where to place it. Let us clear this matter. There are two suggestions now on
marital rape. One is that it is rape if it is done with force or intimidation or any of the circumstances
that would define rape x x x immaterial. The fact that the husband and wife are separated does not
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come into the picture. So even if they are living under one roof x x x for as long as the attendant
circumstances of the traditional rape is present, then that is rape. 112
PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it

does not actually change the meaning of rape. It merely erases the doubt in anybody's mind,
whether or not rape can indeed be committed by the husband against the wife. So the bill really
says, you having been married to one another is not a legal impediment. So I don't really think there
is any need to change the concept of rape as defined presently under the revised penal code. This
do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory.
That if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced
or intimidated into having sexual intercourse against her will, then the crime of rape has been
committed against her by the husband, notwithstanding the fact that they have been legally married.
It does not change anything at all, Mr. Chairman.
PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x. 113
The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No.
9262,114 which regards rape within marriage as a form of sexual violence that may be committed by
a man against his wife within or outside the family abode, viz:
Violence against women and their children refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is likely to
result in. physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is
not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
Statistical figures confirm the above characterization. Emotional and other forms of non-personal
violence are the most common type of spousal violence accounting for 23% incidence among ever-
married women. One in seven ever-married women experienced physical violence by their
husbands while eight percent (8%) experienced sexual violence. 115
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IV. Refutation of the accused-appellant's arguments
The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent theory.
In his appeal brief before the CA, he posits that the two incidents of sexual intercourse, which gave
rise to the criminal charges for rape, were theoretically consensual, obligatory even, because he and
the victim, KKK, were a legally married and cohabiting couple. He argues that consent to copulation
is presumed between cohabiting husband and wife unless the contrary is proved.
The accused-appellant further claims that this case should be viewed and treated differently from
ordinary rape cases and that the standards for determining the presence of consent or lack thereof
must be adjusted on the ground that sexual community is a mutual right and obligation between
husband and wife.116
The contentions failed to muster legal and rational merit.
The ancient customs and ideologies from which the irrevocable implied consent theory evolved have
already been superseded by modem global principles on the equality of rights between men and
women and respect for human dignity established in various international conventions, such as the
CEDAW. The Philippines, as State Party to the CEDAW, recognized that a change in the traditional
role of men as well as the role of women in society and in the family is needed to achieve full
equality between them. Accordingly, the country vowed to take all appropriate measures to modify
the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices, customs and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. 117 One
of such measures is R.A. No 8353 insofar as it eradicated the archaic notion that marital rape
cannot exist because a husband has absolute proprietary rights over his wife's body and thus her
consent to every act of sexual intimacy with him is always obligatory or at least, presumed.
Another important international instrument on gender equality is the UN Declaration on the

Elimination of Violence Against Women, which was Promulgated 118 by the UN General Assembly
subsequent to the CEDA W. The Declaration, in enumerating the forms of gender-based violence
that constitute acts of discrimination against women, identified 'marital rape' as a species of sexual
violence, viz:
Article 1
For the purposes of this Declaration, the term "violence against women" means any act of gender-
based violence that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.
Article 2
Violence against women shall be understood to encompass, but not be limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual
abuse of female children in the household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-spousal violence and violence
related to exploitation;119 (Emphasis ours)
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Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A
man who penetrates her wife without her consent or against her will commits sexual violence upon
her, and the Philippines, as a State Party to the CEDA W and its accompanying Declaration, defines
and penalizes the act as rape under R.A. No. 8353.
A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual
intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a
fellow human being with dignity equal 120 to that he accords himself. He cannot be permitted to
violate this dignity by coercing her to engage in a sexual act without her full and free consent.
Surely, the Philippines cannot renege on its international commitments and accommodate
conservative yet irrational notions on marital activities 121 that have lost their relevance in a
progressive society.
It is true that the Family Code,122 obligates the spouses to love one another but this rule sanctions
affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual 123 and
not the kind which is unilaterally exacted by force or coercion.
Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes
cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function
which enlivens the hope of procreation and ensures the continuation of family relations. It is an
expressive interest in each other's feelings at a time it is needed by the other and it can go a long
way in deepening marital relationship. 124 When it is egoistically utilized to despoil marital union in
order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in
to protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a
husband who feels aggrieved by his indifferent or uninterested wife's absolute refusal to engage in
sexual intimacy may legally seek the court's intervention to declare her psychologically incapacitated
to fulfill an essential marital obligation. 125 But he cannot and should not demand sexual intimacy from
her coercively or violently.
Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the
elements that constitute the crime and in the rules for their proof, infringes on the equal protection
clause. The Constitutional right to equal protection of the laws 126 ordains that similar subjects should
not be treated differently, so as to give undue favor to some and unjustly discriminate against
others; no person or class of persons shall be denied the same protection of laws, which is enjoyed,
by other persons or other classes in like circumstances.127
As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the
perpetrator's own spouse. The single definition for all three forms of the crime shows that the law
does not distinguish between rape committed in wedlock and those committed without a marriage.
Hence, the law affords protection to women raped by their husband and those raped by any other
man alike.
The posture advanced by the accused-appellant arbitrarily discriminates against married rape
victims over unmarried rape victims because it withholds from married women raped by their
husbands the penal redress equally granted by law to all rape victims.
Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the argument
akin to those raised by herein accused-appellant. A marriage license should not be viewed as a
license for a husband to forcibly rape his wife with impunity. A married woman has the same right to
control her own body, as does an unmarried woman. 128 She can give or withhold her consent to a
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sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case
she refuses.
Lastly, the human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive health, free of
coercion, discrimination and violence.129 Women do not divest themselves of such right by
contracting marriage for the simple reason that human rights are inalienable. 130
In fine, since the law does not separately categorize marital rape and non-marital rape nor provide
for different definition or elements for either, the Court, tasked to interpret and apply what the law
dictates, cannot trudge the forbidden sphere of judicial legislation and unlawfully divert from what
the law sets forth. Neither can the Court frame distinct or stricter evidentiary rules for marital rape
cases as it would inequitably burden its victims and unreasonably and irrationally classify them
differently from the victims of non-marital rape.
Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary
rules on rape any differently if the aggressor is the woman's own legal husband. The elements and
quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly
regardless of the legal relationship between the accused and his accuser.
Thus, the Court meticulously reviewed the present case in accordance with the established legal
principles and evidentiary policies in the prosecution and resolution of rape cases and found that no
reversible error can be imputed to the conviction meted the accused-appellant.
The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies
In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence, the
strict mandate that all courts must examine thoroughly the testimony of the offended party. While the
accused in a rape case may be convicted solely on the testimony of the complaining witness, courts
are, nonetheless, duty-bound to establish that their reliance on the victim's testimony is justified.
Courts must ensure that the testimony is credible, convincing, and otherwise consistent with human
nature. If the testimony of the complainant meets the test of credibility, the accused may be
convicted on the basis thereof.131
It is settled that the evaluation by the trial court of the credibility of witnesses and their testimonies
are entitled to the highest respect. This is in view of its inimitable opportunity to directly observe the
witnesses and their deportment, conduct and attitude, especially during cross-examination. Thus,
unless it is shown that its evaluation was tainted with arbitrariness or certain facts of substance and
value have been plainly overlooked, misunderstood, or misapplied, the same will not be disturbed
on appeal.132
After approximating the perspective of the trial court thru a meticulous scrutiny of the entire records
of the trial proceedings and the transcript of each witnesses' testimony, the Court found no
justification to disturb its findings.
Rather, the Court observed that KKK and her testimony were both credible and spontaneous. Hailed
to the witness stand on six separate occasions, KKK never wavered neither did her statements
vacillate between uncertainty and certitude. She remained consistent, categorical, straightforward,
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and candid during the rigorous cross-examination and on rebuttal examination, she was able to
convincingly explain and debunk the allegations of the defense.
She vividly recounted how the accused-appellant forced her to have sex with him despite her refusal
on October 16, 1998. He initially ordered her to sleep beside him in their conjugal bed by violently
throwing the cot where she was resting. In order not to aggravate his temper, KKK obeyed. On the
bed, he insinuated for them to have sex. When she rejected his advances due to abdominal pain
and headache, his request for intimacy transformed into a stubborn demand. Unyielding, KKK held
her panties but the accused-appellant forcibly pulled them down. The tug caused the small clothing
to tear apart. She reiterated that she was not feeling well and begged him to stop. But no amount of
resistance or begging subdued him. He flexed her two legs apart, gripped her hands, mounted her,
rested his own legs on hers and inserted his penis into her vagina. She continued pleading but he
never desisted.133
Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise unmistakable.
After the appalling episode in the conjugal bedroom the previous night, KKK decided to sleep in the
children's bedroom. While her daughters were fixing the beddings, the accused-appellant barged
into the room and berated her for refusing to go with him to their conjugal bedroom. When KKK
insisted to stay in the children's bedroom, the accused-appellant got angry and pulled her up.
MMM's attempt to pacify the accused-appellant further enraged him. He reminded them that as the
head of the family he could do whatever he wants with his wife. To demonstrate his role as
patriarch, he ordered the children to go out of the room and thereafter proceeded to force KKK into
sexual intercourse. He forcibly pulled down her short pants and panties as KKK begged "Dont do
that to me, my body is still aching and also my abdomen and I cannot do what you wanted me to do.
I cannot withstand sex."134 But her pleas fell on deaf ears. The accused-appellant removed his
shorts and briefs, spread KKK's legs apart, held her hands, mounted her and inserted his penis into
her vagina. After gratifying himself, he got dressed, left the room as he chuckled: "Its nice, that is
what you deserve because you are [a] flirt or fond of sex."135
Entrenched is the rule that in the prosecution of rape cases, the essential element that must be
proved is the absence of the victim's consent to the sexual congress. 136
Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or
intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable of
giving free and voluntary consent because he/she is deprived of reason or otherwise unconscious or
that the offended party is under 12 years of age or is demented.
Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her through
force and intimidation both of which were established beyond moral certainty by the prosecution
through the pertinent testimony of KKK, viz:
On the October 16, 1998 rape incident:
(Direct Examination)
ATTY. LARGO:
Q So, while you were already lying on the bed together with your husband, do you remember what
happened?
A He lie down beside me and asked me to have sex with him.

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Q How did he manifest that he wanted to have sex with you?
A He put his hand on my lap and asked me to have sex with him but I warded off his hand.
Q Can you demonstrate to this Court how did he use his hand?
A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her lap
which means that he wanted to have sex."
Q So, what did you do after that?
A I warded off his hand and refused because I was not feeling well. (at this juncture the witness is
sobbing)
Q So, what did your husband do when you refused him to have sex with you?
A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.
Q Why, what did you do when he started to pull your pantie [sic]?
A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.
xx xx
Q So, when your pantie [sic] was tom by your husband, what else did he do?
A He flexed my two legs and rested his two legs on my legs.
Q So after that what else did he do?
A He succeeded in having sex with me because he held my two hands no matter how I wrestled but
I failed because he is stronger than me.
COURT: Make it of record that the witness is sobbing while she is giving her testimony.
ATTY. LARGO: (To the witness cont'ng.)
Q So, what did you do when your husband already stretched your two legs and rode on you and
held your two hands?
A I told him, "don't do that because I'm not feeling well and my whole body is aching."
Q How did you say that to your husband?
A I told him, "don't do that to me because I'm not feeling well."
Q Did you say that in the manner you are saying now?
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xxxx
A I shouted when I uttered that words.
xxxx
Q Was your husband able to consummate his desire?
xxxx
A Yes, sir, because I cannot do anything.137
(Cross-Examination)
ATTY. AMARGA;
Q Every time you have sex with your husband it was your husband normally remove your panty?
A Yes, Sir.
Q It was not unusual for your husband then to remove your panty because according to you he
normally do that if he have sex with you?
A Yes, Sir.
Q And finally according to you your husband have sex with you?
A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to have
sex with him at that time.
Q You did not spread your legs at that time when he removed your panty?
A Yes, Sir.
Q Meaning, your position of your legs was normal during that time?
A I tried to resist by not flexing my legs.
xxxx
Q At that time when your husband allegedly removed your panty he also remove your nightgown?
A No, Sir.
Q And he did pull out your duster [sic] towards your face?
A He raised my duster [sic] up.
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Q In other words your face was covered when he raised your duster [sic]?
A No, only on the breast level.138
On the October 17, 1998 rape incident:
(Direct Examination)
ATTY. LARGO
Q So, after your children went out of the room, what transpired?
A He successfully having sex with me because he pulled my short pant and pantie forcible.
Q So, what did you say when he forcibly pulled your short and pantie?
A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do what
you wanted me to do. I cannot withstand sex."
Q So, what happened to your short when he forcibly pulled it down?
A It was tom.
Q And after your short and pantie was pulled down by your husband, what did he do?
A He also removed his short and brief and flexed my two legs and mounted on me and succeeded
in having sex with me.139
The accused-appellant forced his wife when he knowingly overpowered her by gripping her hands,
flexing her legs and then resting his own legs thereon in order to facilitate the consummation of his
much-desired non-consensual sexual intercourse.
Records also show that the accused-appellant employed sufficient intimidation upon KKK. His
actuations prior to the actual moment of the felonious coitus revealed that he imposed his distorted
sense of moral authority on his wife. He furiously demanded for her to lay with him on the bed and
thereafter coerced her to indulge his sexual craving.
The fury the accused-appellant exhibited when KKK refused to sleep with him on their bed, when
she insisted to sleep in the children's bedroom and the fact that he exercises dominance over her as
husband all cowed KKK into submission.
The fact that KKK voluntarily went with the accused-appellant to their conjugal bedroom on October
16, 1998 cannot be stretched to mean that she consented to the forced sexual intercourse that
ensued. The accused-appellant was KKK's husband and hence it was customary for her to sleep in
the conjugal bedroom. No consent can be deduced from such act of KKK because at that juncture
there were no indications that sexual intercourse was about to take place. The issue of consent was
still irrelevant since the act for which the same is legally required did not exist yet or at least unclear
to the person from whom the consent was desired. The significant point when consent must be
given is at that time when it is clear to the victim that her aggressor is soliciting sexual congress. In
Page 86 of 100
this case, that point is when the accused-appellant tapped his fingers on her lap, a gesture KKK
comprehended to be an invitation for a sexual intercourse, which she refused.
Resistance, medical certificate and blood traces.
We cannot give credence to the accused-appellant's argument that KKK should have hit him to
convey that she was resisting his sexual onslaught. Resistance is not an element of rape and the
law does not impose upon the victim the burden to prove resistance 140 much more requires her to
raise a specific kind thereof.
At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant to
recognize that she seriously did not assent to a sexual congress. She held on to her panties to
prevent him from undressing her, she refused to bend her legs and she repeatedly shouted and
begged for him to stop.
Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just enough
to bring about the desired result. What is necessary is that the force or intimidation be sufficient to
consummate the purpose that the accused had in mind 141 or is of such a degree as to impel the
defenseless and hapless victim to bow into submission.142
Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or the
lack of a medical certificate do not negate rape. It is not the presence or absence of blood on the
victim's underwear that determines the fact of rape 143 inasmuch as a medical certificate is
dispensable evidence that is not necessary to prove rape. 144 These details do not pertain to the
elements that produce the gravamen of the offense that is -sexual intercourse with a woman against
her will or without her consent.145
The accused-appellant harps on the acquittal ruling in People v. Godoy, 146 the evidentiary
circumstances of which are, however, disparate from those in the present case. In Godoy, the
testimony of the complainant was inherently weak, inconsistent, and was controverted by the
prosecution's medico-legal expert witness who stated that force was not applied based on the
position of her hymenal laceration. This led the Court to conclude that the absence of any sign of
physical violence on the victim's body is an indication of consent. 147 Here, however, KKK's testimony
is, as discussed earlier, credible, spontaneous and forthright.
The corroborative testimonies of

MMM and OOO are worthy of credence.
The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as they
did not witness the actual rape is bereft of merit. It must be stressed that rape is essentially
committed in relative isolation, thus, it is usually only the victim who can testify with regard to the
fact of the forced sexual intercourse.148 Hence, the probative value of MMM and OOO's testimonies
rest not on whether they actually witnessed the rape but on whether their declarations were in
harmony with KKK's narration of the circumstances, preceding, subsequent to and concurrent with,
the rape incidents.
MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard KKK
shouting and crying: "Eddie, don’t do that to me, have pity on me" 149 on the night of October 16,
1998 shortly after KKK and the accused-appellant went to their conjugal bedroom. When MMM went
upstairs to check on her mother, the accused-appellant admonished her for meddling. Frustrated to
aid her mother who persistently cried, MMM kicked the door so hard the accused-appellant was
Page 87 of 100
prompted to open it and rebuke MMM once more. OOO heard all these commotion from the room
downstairs.
MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom
panty lay on the floor. After a brief struggle with the accused-appellant, MMM and KKK were finally
able to escape and retreat to the children's bedroom where KKK narrated to her daughters: "[Y]our
father is an animal, a beast; he forced me to have sex with him when I'm not feeling well. "
KKK gave a similar narration to MMM and OOO the following night after the accused-appellant
barged inside the children's bedroom. The couple had an argument and when MMM tried to
interfere, the accused-appellant ordered her and OOO to get out after bragging that he can have
sex with his wife even in front of the children because he is the head of the family. The girls then
stayed by the staircase where they afterwards heard their mother helplessly crying and shouting for
the accused-appellant to stop.
Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-appellant,
through the use of force and intimidation, had non-consensual and forced carnal knowledge of his
wife, KKK on the nights of October 16 and 17, 1998.
KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and physical
resistance were clear manifestations of coercion. Her appearance when MMM saw her on the bed
after the accused appellant opened the door on October 16, 1998, her conduct towards the
accused-appellant on her way out of the room, and her categorical outcry to her children after the
two bedroom episodes - all generate the conclusion that the sexual acts that occurred were against
her will.
Failure to immediately report to the

police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.
The testimonies of KKK and her daughters cannot be discredited merely because they failed to
report the rape incidents to the police authorities or that KKK belatedly filed the rape charges. Delay
or vacillation by the victims in reporting sexual assaults does not necessarily impair their credibility if
such delay is satisfactorily explained.150
At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to
sexual intercourse is considered rape. In fact, KKK only found out that she could sue his husband
for rape when Prosecutor Benjamin Tabique, Jr. (Prosecutor Tabique) told her about it when she
filed the separate charges for grave threats and physical injuries against the accused-appellant. 151
It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353 abolishing
marital exemption in rape cases hence it is understandable that it was not yet known to a layman as
opposed to legal professionals like Prosecutor Tabique. In addition, fear of reprisal thru social
humiliation which is the common factor that deter rape victims from reporting the crime to the
authorities is more cumbersome in marital rape cases. This is in view of the popular yet outdated
belief that it is the wife's absolute obligation to submit to her husband's carnal desires. A husband
raping his own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic
trouble.
Page 88 of 100
Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and public
scrutiny that could have befallen KKK and her family had the intervention of police authorities or
even the neighbors been sought, are acceptable explanations for the failure or delay in reporting the
subject rape incidents.
The victim -S testimony on the

witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.
The failure of the prosecution to present KKK's complaint-affidavit for rape is not fatal in view of the
credible, candid and positive testimony of KKK on the witness stand. Testimonial evidence carries
more weight than the affidavit since it underwent the rudiments of a direct, cross, re-direct and re-
cross examinations. Affidavits or statements taken ex parte are generally considered incomplete
and inaccurate. Thus, by nature, they are inferior to testimony given in court. 152
Ill motive imputed to the victim
The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is riddled
with loopholes generated by incongruent and flimsy evidence. The prosecution was able to establish
that the ₱3 Million deposit in the spouses' bank account was the proceeds of their loan from the
Bank of Philippine Islands (BPI). Exhibit J, which is a BPI ML instruction sheet dated October 31,
1996 in the amount of ₱3,149,840.63 is the same amount the accused-appellant claimed to have
entrusted to her wife. Although the accused-appellant denied being aware of such loan, he admitted
that approximately ₱3 Million was spent for the construction of their house. These pieces of
evidence effectively belie the accused appellant's allegation that KKK could not account for the
money deposited in the bank.153
Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain how Bebs could
be his wife KKK when the letter-sender greeted Bebs a "happy birthday" on October 28 while KKK's
birthday is June 23. The accused-appellant also did not present Bebs herself, being a more
competent witness to the existence of the alleged love letters for KKK. He likewise failed, despite
promise to do so, to present the original copies of such love letters neither did he substantiate KKK's
supposed extra-marital affairs by presenting witnesses who could corroborate his claims. Further,
the Court finds it unbelievable that an able man would not have the temerity to confront his wife who
has fooled around with 10 men - some of whom he has even met. The accused-appellant's erratic
statements on the witness stand are inconsistent with the theory of extra-marital romance making it
reasonable to infer that he merely made up those malicious stories as a desperate ploy to extricate
himself out of this legal quandary.
At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded
suspicions that hold no evidentiary weight in law and thus incompetent to destroy KKK's credibility
and that of her testimony. In sum, the defense failed to present sufficiently convincing evidence that
KKK is a mere vindictive wife who is harassing the accused-appellant with fabricated rape charges.
Alibi
It must be stressed that in raising the irrevocable implied consent theory as defense, the accused-
appellant has essentially admitted the facts of sexual intercourse embodied in the two criminal
informations for rape. This admission is inconsistent with the defense of alibi and any discussion
thereon will thus be irrelevant.
Page 89 of 100
At any rate, the courts a quo correctly rejected his alibi.
Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but also
because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the positive
identification of the accused by eyewitnesses who had no improper motive to testify falsely. 154
For the defense of alibi to prosper, the accused must prove not only that he was at some other place
at the time of the commission of the crime, but also that it was physically impossible for him to be at
the locus delicti or within its immediate vicinity. Physical impossibility refers not only to the
geographical distance between the place where the accused was and the place where the crime
was committed when the crime transpired, but more importantly, the facility of access between the
two places.155
Even granting in arguendo that the accused-appellant had indeed attended a fiesta in Dangcagan,
Bukidnon or was hauling com with Equia on the dates of commission of the crime, the same will not
easily exonerate him. The accused-appellant failed to adduce clear and convincing evidence that it
was physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crime. Dangcagan, Bukidnon can be traversed by about four or five hours from
Cagayan de Oro City, and even less by private vehicle which was available to the accused appellant
at any time.156 Thus, it was not physically impossible for him to be at the situs criminis at the dates
and times when the two rape incidents were committed.
Between the accused-appellant's alibi and denial, and the positive identification and credible
testimony of the victim, and her two daughters, the Court must give weight to the latter, especially in
the absence of ill motive on their part to falsely testify against the accused-appellant.
Conclusion
All told, the presumption of innocence endowed an accused-appellant was sufficiently overcome by
KKK's clear, straightforward, credible, and truthful declaration that on two separate occasions, he
succeeded in having sexual intercourse with her, without her consent and against her will. Evidence
of overwhelming force and intimidation to consummate rape is extant from KKK's narration as
believably corroborated by the testimonies of MMM and OOO and the physical evidence of KKK's
tom panties and short pants. Based thereon, the reason and conscience of the Court is morally
certain that the accused-appellant is guilty of raping his wife on the nights of October 16 and 17,
1998.
Penalties
The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the
accused-appellant for being in accord with Article 266-A in relation to 266-B of the RPC. Further, he
shall not be eligible for parole pursuant to Section 3 of R.A. No. 9346, which states that "persons
convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to
reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended." 157
The Court sustains the moral damages awarded in the amount of ₱50,000.00. Moral damages are
granted to rape victims without need of proof other than the fact of rape under the assumption that
the victim suffered moral injuries from the experience she underwent. 158
Page 90 of 100
The award of civil indemnity is proper; it is mandatory upon the finding that rape took
place.1âwphi1 Considering that the crime committed is simple rape, there being no qualifying
circumstances attendant in its commission, the appropriate amount is ₱50,000.00 159 and not
₱75,000.00 as awarded by the RTC.
To serve as an example for public good and in order to deter a similar form of domestic violence, an
award of ₱30,000.00 as exemplary damages is imperative. 160
The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be
reckoned from the date of finality of this judgment until fully paid. 161
A Final Note
Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's value
and dignity as a human being. It respects no time, place, age, physical condition or social status. It
can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife,
inside her time-honored fortress, the family home, committed against her by her husband who
vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our
rape laws provide the atonement they seek from their sexually coercive husbands.
Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A
husband does not own his wife's body by reason of marriage. By marrying, she does not divest
herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully
opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting
refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her
yield. He can seek succor before the Family Courts that can determine whether her refusal
constitutes psychological incapacity justifying an annulment of the marriage.
Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion
that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it
contemplates only mutual sexual cooperation and never sexual coercion or imposition.
The Court is aware that despite the noble intentions of the herein pronouncement, menacing
personalities may use this as a tool to harass innocent husbands. In this regard, let it be stressed
that safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false
marital rape complaints and any person who institutes untrue and malicious charges will be made
answerable under the pertinent provisions of the RPC and/or other laws.
WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of Appeals
in CA-G.R. CR-HC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-appellant
Edgar Jumawan is found GUILTY beyond reasonable doubt of two (2) counts of RAPE and is
sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole. He
is further ordered to pay the victim, KKK, the amounts of PS0,000.00 as civil indemnity, ₱50,000.00
as moral damages, and ₱30,000.00 as exemplary damages, for each count of rape. The award of
damages shall earn legal interest at the rate of six percent (6%) per annum from the finality of this
judgment until fully paid.
SO ORDERED.
Page 91 of 100
[12]
G.R. No. 11263 November 2, 1916
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.
1.MARRIAGE; NATURE OF THE OBLIGATION.—Marriage is something more than a contract, though

founded upon the agreement of the parties. When once formed a relation is created between the parties which
they cannot change by agreement, and the rights and obligations of which depend not upon their agreement
but upon the law. The spouses must be faithful to, assist, support, and live with each other.
2.HUSBAND AND WlFE; ACTION FOR SEPARATE MAINTENANCE.—The wife, who is forced to leave
the conjugal abode by her husband without fault on her part, may maintain an action against the husband for
separate maintenance when she has no other remedy, notwithstanding the provisions of article 149 of the Civil
Code giving the person who is obliged to furnish support the option to satisfy it either by paying a fixed
pension or by receiving and maintaining in his own home the one having the right to the same.
3.ID.; ID.; SUFFICIENCY OF COMPLAINT.—The complaint of the wife which alleges unbearable conduct

and treatment on the part of the husband is sufficient to constitute a cause of action for separate maintenance.
APPEAL from a judgment of the Court of First Instance of Manila. Ostrand, J.
TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal domicile. From
a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the
complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff
declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her
a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter
established their residence at 115 Calle San Marcelino, where they lived together for about a month,
when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are
as follows:
That the defendant, one month after he had contracted marriage with the plaintiff,
demanded of her that she perform unchaste and lascivious acts on his genital organs; that
the plaintiff spurned the obscene demands of the defendant and refused to perform any act
other than legal and valid cohabitation; that the defendant, since that date had continually
on other successive dates, made similar lewd and indecorous demands on his wife, the
plaintiff, who always spurned them, which just refusals of the plaintiff exasperated the
defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips,
her face and different parts of her body; and that, as the plaintiff was unable by any means
to induce the defendant to desist from his repugnant desires and cease from maltreating
Page 92 of 100
her, she was obliged to leave the conjugal abode and take refuge in the home of her
parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.)
Upon the termination of the marriage ceremony, a conjugal partnership is formed between the
parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the
nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the
rights, duties, and obligations of which rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights, duties, and obligations .Marriage is an
institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for
life and the parties cannot terminate it at any shorter period by virtue of any contract they may
make .The reciprocal rights arising from this relation, so long as it continues, are such as the law
determines from time to time, and none other. When the legal existence of the parties is merged into
one by marriage, the new relation is regulated and controlled by the state or government upon
principles of public policy for the benefit of society as well as the parties. And when the object of a
marriage is defeated by rendering its continuance intolerable to one of the parties and productive of
no possible good to the community, relief in some way should be obtainable. With these principles
to guide us, we will inquire into the status of the law touching and governing the question under
consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each
other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals
with the management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when he charges
his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for just cause
relieve her from this duty when the husband removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the whole extent
specified in the preceding article.
1. The consorts.
xxx xxx xxx
ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by
paying the pension that may be fixed or by receiving and maintaining in his own home the
person having the right to the same.
Page 93 of 100
Article 152 of the Civil Code gives the instances when the obligation to give support shall cease.
The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may, at his option, do so by paying her a
fixed pension or by receiving and maintaining her in his own home. May the husband, on account of
his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of
December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in its decisions dated May
11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the
person, obliged to furnish subsistence, between paying the pension fixed or receiving and
keeping in his own house the party who is entitled to the same, is not so absolute as to
prevent cases being considered wherein, either because this right would be opposed to the
exercise of a preferential right or because of the existence of some justifiable cause morally
opposed to the removal of the party enjoying the maintenance, the right of selection must be
understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise to this appeal was
whether there was any reason to prevent the exercise of the option granted by article 149 of
the Civil Code to the person obliged to furnish subsistence, to receive and maintain in his
own house the one who is entitled to receive it; and inasmuch as nothing has been alleged
or discussed with regard to the parental authority of Pedro Alcantara Calvo, which he ha not
exercised, and it having been set forth that the natural father simply claims his child for the
purpose of thus better attending to her maintenance, no action having been taken by him
toward providing the support until, owing to such negligence, the mother was obliged to
demand it; it is seen that these circumstances, together with the fact of the marriage of
Pedro Alcantara, and that it would be difficult for the mother to maintain relations with her
daughter, all constitute an impediment of such a nature as to prevent the exercise of the
option in the present case, without prejudice to such decision as may be deemed proper
with regard to the other questions previously cited in respect to which no opinion should be
expressed at this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it
is insisted that there existed a preexisting or preferential right in each of these cases which was
opposed to the removal of the one entitled to support. It is true that in the first the person claiming
the option was the natural father of the child and had married a woman other than the child's
mother, and in the second the right to support had already been established by a final judgment in a
criminal case. Notwithstanding these facts the two cases clearly established the proposition that the
option given by article 149 of the Civil Code may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business
reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose
of her property. When she left him he gave her all the muniments of title, mortgage credits, notes,
P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels,
thus depriving himself of all his possessions and being reduced in consequence to want.
Page 94 of 100
Subsequently he instituted this civil action against his wife, who was then living in opulence, for
support and the revocation of the powers heretofore granted in reference to the administration and
disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not
legally in a situation to claim support and that the powers voluntarily conferred and accepted by her
were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the
defendant wife appealed to the Audencia Territorial wherein, after due trial, judgment was rendered
in her favor dismissing the action upon the merits. The plaintiff appealed to the supreme court and
that high tribunal, in affirming the judgment of the Audencia Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing that the spouses are
mutually obliged to provide each other with support, cannot but be subordinate to the other
provisions of said Code which regulates the family organization and the duties of spouses
not legally separated, among which duties are those of their living together and mutually
helping each other, as provided in article 56 of the aforementioned code; and taking this for
granted, the obligation of the spouse who has property to furnish support to the one who
has no property and is in need of it for subsistence, is to be understood as limited to the
case where, in accordance with law, their separation has been decreed, either temporarily
or finally and this case, with respect to the husband, cannot occur until a judgment of
divorce is rendered, since, until then, if he is culpable, he is not deprived of the management
of his wife's property and of the product of the other property belonging to the conjugal
partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it would allow
married persons to disregard the marriage bond and separate from each other of their own
free will, thus establishing, contrary to the legal provision contained in said article 56 of the
Civil Code, a legal status entirely incompatible with the nature and effects of marriage in
disregard of the duties inherent therein and disturbing the unity of the family, in opposition to
what the law, in conformity with good morals, has established; and.
Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not legally
separated, it is their duty to live together and afford each other help and support; and for this
reason, it cannot be held that the former has need of support from his wife so that he may
live apart from her without the conjugal abode where it is his place to be, nor of her
conferring power upon him to dispose even of the fruits of her property in order therewith to
pay the matrimonial expenses and, consequently, those of his own support without need of
going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon
Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in
the assignments of error 1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there are
strong indications to this effect, for the court says, "should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage bond and separate from each other
of their own free will." If this be the true basis upon which the supreme court of Spain rested its
decision, then the doctrine therein enunciated would not be controlling in cases where one of the
spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish support. That this is true appears
from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an
action for support against her husband who had willfully and voluntarily abandoned the conjugal
abode without any cause whatever. The supreme court, reversing the judgment absolving the
defendant upon the ground that no action for divorce, etc., had been instituted, said:
Page 95 of 100
In the case at bar, it has been proven that it was Don Teodoro Exposito who left the
conjugal abode, although he claims, without however proving his contention, that the person
responsible for this situation was his wife, as she turned him out of the house. From this
state of affairs it results that it is the wife who is party abandoned, the husband not having
prosecuted any action to keep her in his company and he therefore finds himself, as long as
he consents to the situation, under the ineluctable obligation to support his wife in fulfillment
of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article
143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this
duty the situation or relation of the spouses should be regulated in the manner it indicates,
has made the errors of law assigned in the first three grounds alleged, because the nature
of the duty of affording mutual support is compatible and enforcible in all situations, so long
as the needy spouse does not create any illicit situation of the court above
described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case
under consideration, that neither spouse can be compelled to support the other outside of the
conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not necessarily control in this
jurisdiction for the reason that the substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are
not in force in the Philippine Islands. The law governing the duties and obligations of husband and
wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the
complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as
adultery on the part of the wife in every case and on the part of the husband when public scandal or
disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence
exercised by the husband toward the wife in order to force her to change her religion; the proposal
of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to
prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of
a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is
adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was
announced by this court in the case just cited after an exhaustive examination of the entire subject.
Although the case was appealed to the Supreme Court of the United States and the judgment
rendered by this court was there reversed, the reversal did not affect in any way or weaken the
doctrine in reference to adultery being the only ground for a divorce. And since the decision was
promulgated by this court in that case in December, 1903, no change or modification of the rule has
been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and, consequently, if a court lacks power to
decree a divorce, as in the instant case, power to grant a separate maintenance must also be
lacking. The weakness of this argument lies in the assumption that the power to grant support in a
separate action is dependent upon a power to grant a divorce. That the one is not dependent upon
the other is apparent from the very nature of the marital obligations of the spouses. The mere act of
marriage creates an obligation on the part of the husband to support his wife. This obligation is
founded not so much on the express or implied terms of the contract of marriage as on the natural
and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the
state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife
to seek protection in the parental home. A judgment for separate maintenance is not due and
payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but
rather a judgment calling for the performance of a duty made specific by the mandate of the
sovereign. This is done from necessity and with a view to preserve the public peace and the purity
Page 96 of 100
of the wife; as where the husband makes so base demands upon his wife and indulges in the habit
of assaulting her. The pro tanto separation resulting from a decree for separate support is not an
impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its
nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such
separation is tolerated as a means of preserving the public peace and morals may be considered, it
does not in any respect whatever impair the marriage contract or for any purpose place the wife in
the situation of a feme sole.
The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed
in this case, rest.
Page 97 of 100
[13]
G.R. No. L-4089 January 12, 1909
ARTURO PELAYO, plaintiff-appellant,
vs.
MARCELO LAURON, ET AL., defendants-appellees.
1.RECIPROCAL OBLIGATIONS OF HUSBAND AND WIFE; SUPPORT.—Among the reciprocal

obligations existing between a husband and wife is that of support, which obligation is established by law
2.ID. ; SUPPORT OF STRANGERS.—The law does not compel any person to support a stranger unless such
person bound himself to do so by an express contract.
3.ID., SUPPORT OF WIFE.—Where a husband whom the law compels to support his wife is living, the father
and mother-in-law of the latter are under no liability to provide for her.
APPEAL from a judgment of the Court of First Instance of Cebu. Wislizenus, J.
TORRES, J.:
On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint
against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said
year, at night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and
that upon arrival he was requested by them to render medical assistance to their daughter-in-law
who was about to give birth to a child; that therefore, and after consultation with the attending
physician, Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the fetus
by means of forceps which operation was performed by the plaintiff, who also had to remove the
afterbirth, in which services he was occupied until the following morning, and that afterwards, on the
same day, he visited the patient several times; that the just and equitable value of the services
rendered by him was P500, which the defendants refuse to pay without alleging any good reason
therefor; that for said reason he prayed that the judgment be entered in his favor as against the
defendants, or any of them, for the sum of P500 and costs, together with any other relief that might
be deemed proper.
In answer to the complaint counsel for the defendants denied all of the allegation therein contained
and alleged as a special defense, that their daughter-in-law had died in consequence of the said
childbirth, and that when she was alive she lived with her husband independently and in a separate
house without any relation whatever with them, and that, if on the day when she gave birth she was
in the house of the defendants, her stay their was accidental and due to fortuitous circumstances;
therefore, he prayed that the defendants be absolved of the complaint with costs against the
plaintiff.
The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing
the defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order
the defendants presented, on the same date, their amended answer, denying each and every one of
the allegations contained in the complaint, and requesting that the same be dismissed with costs.
Page 98 of 100
As a result of the evidence adduced by both parties, judgment was entered by the court below on
the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on account
of the lack of sufficient evidence to establish a right of action against the defendants, with costs
against the plaintiff, who excepted to the said judgment and in addition moved for a new trial on the
ground that the judgment was contrary to law; the motion was overruled and the plaintiff excepted
and in due course presented the corresponding bill of exceptions. The motion of the defendants
requesting that the declaration contained in the judgment that the defendants had demanded
therefrom, for the reason that, according to the evidence, no such request had been made, was also
denied, and to the decision the defendants excepted.
Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having
been sent for by the former, attended a physician and rendered professional services to a daughter-
in-law of the said defendants during a difficult and laborious childbirth, in order to decide the claim of
the said physician regarding the recovery of his fees, it becomes necessary to decide who is bound
to pay the bill, whether the father and mother-in-law of the patient, or the husband of the latter.
According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-
contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence
occurs.
Obligations arising from law are not presumed. Those expressly determined in the code or in special
laws, etc., are the only demandable ones. Obligations arising from contracts have legal force
between the contracting parties and must be fulfilled in accordance with their stipulations. (Arts.
1090 and 1091.)
Issue: W/N the in-laws were liable for the medical expenses relative to the child birth of their
daughter in law
Held: Negative.
The rendering of medical assistance in case of illness is comprised among the mutual obligations to
which the spouses are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are
mutually bound to support each other, there can be no question but that, when either of them by
reason of illness should be in need of medical assistance, the other is under the unavoidable
obligation to furnish the necessary services of a physician in order that health may be restored, and
he or she may be freed from the sickness by which life is jeopardized; the party bound to furnish
such support is therefore liable for all expenses, including the fees of the medical expert for his
professional services. This liability originates from the above-cited mutual obligation which the law
has expressly established between the married couple.
In the face of the above legal precepts it is unquestionable that the person bound to pay the fees
due to the plaintiff for the professional services that he rendered to the daughter-in-law of the
defendants during her childbirth, is the husband of the patient and not her father and mother- in-law,
the defendants herein. The fact that it was not the husband who called the plaintiff and requested
his assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view
of the imminent danger, to which the life of the patient was at that moment exposed, considered that
medical assistance was urgently needed, and the obligation of the husband to furnish his wife in the
indispensable services of a physician at such critical moments is specially established by the law, as
has been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that
Page 99 of 100
he is entitled to recover his fees, must direct his action against the husband who is under obligation
to furnish medical assistance to his lawful wife in such an emergency.
From the foregoing it may readily be understood that it was improper to have brought an action
against the defendants simply because they were the parties who called the plaintiff and requested
him to assist the patient during her difficult confinement, and also, possibly, because they were her
father and mother-in-law and the sickness occurred in their house. The defendants were not, nor are
they now, under any obligation by virtue of any legal provision, to pay the fees claimed, nor in
consequence of any contract entered into between them and the plaintiff from which such obligation
might have arisen.
In applying the provisions of the Civil Code in an action for support, the supreme court of Spain,
while recognizing the validity and efficiency of a contract to furnish support wherein a person bound
himself to support another who was not his relative, established the rule that the law does impose
the obligation to pay for the support of a stranger, but as the liability arose out of a contract, the
stipulations of the agreement must be held. (Decision of May 11, 1897.)
Within the meaning of the law, the father and mother-in-law are strangers with respect to the
obligation that devolves upon the husband to provide support, among which is the furnishing of
medical assistance to his wife at the time of her confinement; and, on the other hand, it does not
appear that a contract existed between the defendants and the plaintiff physician, for which reason it
is obvious that the former can not be compelled to pay fees which they are under no liability to pay
because it does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second errors assigned to the judgment
below are unfounded, because, if the plaintiff has no right of action against the defendants, it is
needless to declare whether or not the use of forceps is a surgical operation.
Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the appellant. So ordered.
Page 100 of 100

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Assignment No.

Republic of the Philippines

A.M. No. 02-11-11-SC March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RULE ON LEGAL SEPARATION

The Rules of Court shall apply suppletorily.

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or

(b) Contents and form. - The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(3) Be verified and accompanied by a certification against forum shopping. The

Failure to comply with the preceding requirements may be a ground for

(a) the date of pre-trial conference; and

(6) Such other matters as the court may require.

(2) Factual and legal issues to be litigated;

(5) Schedule of the presentation of evidence.

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground lor legal separation;

(4) Future support;

(6) Future legitime.

(3) Both parties have given ground for legal separation;

(5) The action is barred by prescription.

(c) The decision shall likewise declare that:

Section 24. Revival of property regime or adoption of another. -

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

Panganiban September 9, 1933

ATTORNEYS-AT-LAW ; GROUNDS FOR DISBARMENT; MISCONDUCT AS NOTARY PUBLIC.

ORIGINAL ACTION in the Supreme Court. Disbarment proceedings.

The Respondent in his own behalf.

G.R. No. L-38672 1 October 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

CRIMINAL LAW; ADULTERY; HUSBAND'S CONSENT.—The conduct of the husband, as

APPEAL from a judgment of the Court of First Instance of Isabela. De la Costa, J.

ART. 344. Prosecution of all crimes of adultery, concubinage, seduction, abduction, rape

(Sgd.) ROSARIO TAGAYUN (Sgd.) RAMON PALATTAO

ISSUE: W/N Accused appellants are guilty of adultery

A su vez, transigir un marido con su deshonor, consentir el adulterio y luego ir a los

The judgment below is reversed with costs de oficio.

G.R. No. 82606 December 18, 1992

Judgments; Omission or mistake in dispositive portion of decision; Failure of petitioner’s counsel to

Domestic relations; Judicial separation of conjugal property; Family Code; Abandonment and failure

PETITION to review the decision of the Court of Appeals.

We deal first with the second ground.

The petitioner has a point.

ISSUE: W/N A JUDICIAL SEPARATION OF PROPERTY MAY BE DECREED

And now to the merits of Civil Case No. 51.

xxx xxx xxx

1. Abondonment by a spouse of the other without just cause; and

xxx xxx xxx

G.R. No. L-19565 January 30, 1968

Civil Law; Separation of property; Abandonment of spouse; Concept of abandonment as ground for