Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental,
Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent
Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife)
and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's
motion to suspend hearings in the action for legal separation filed against him by private respondent as well as
his motion to inhibit respondent Judge from further hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of
Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent
Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition for
support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October 1986,
private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner
for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14 November
1986, application for the provisional remedy of support pendente lite, pending a decision in the action for legal
separation, was filed by private respondent in the civil case for legal separation. The respondent judge, as
already stated, on 10 December 1986, ordered The payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent
thereto, such as, application for support pendente lite, should be suspended in view of the criminal case for
concubinage filed against him the private respondent. In support of his contention, petitioner cites Art. III. Sec.
3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have
instituted the civil action to enforce the civil liability arising from the offense. as contemplated in
the first Section 1 hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil
action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related
to legal separation will have to be suspended to await conviction or acquittal for concubinage in the criminal
case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be
proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions
of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law,
the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute it separately;
 (b) Criminal and civil actions arising from the same offense may be instituted separately, but
after the criminal action has been commenced the civil action can not be instituted until final
judgment has been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense
can be prosecuted and the same shall be suspended in whatever stage it may be found until final
judgment in the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with
or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In
other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for
concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if
both the civil and criminal actions arise from or are related to the same offense. Such civil action is one
intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of
the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the
innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August
1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al.,
L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of
then Rule 107 of the Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the
same offense can be prosecuted and the same shall be suspended, in whatever
stage it may be found, until final judgment in the criminal proceeding has been
rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to
enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule
111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111,
(1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged.
Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the
conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of
the Civil Code."2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal
separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of
concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of
evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the
doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when
absolute divorce was then allowed and had for its grounds the same grounds for legal separation under the New
Civil Code, with the requirement, under such former law, that the guilt of defendant spouses had to be
established by final judgment in a criminal action. That requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the
stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of
grave abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a
remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If
petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to
modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of
supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a
disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest
partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's
counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing
the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep.

2 Rollo at 33.

3 Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his Motion to Inhibit Respondent Judge and Motion to
Suspend Hearing wherein he states, "Concubinage is the same criminal offense punishable under Art. 334 of the Revised Penal
Code which in a case for legal separation, the same may be proved based on preponderance of evidence". Rollo at 50.

4 50 Phil. 42 (1927)

5 Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE PHILIPPINES ANNOTATED 374 (1971);
Tolentino, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 311 (1983).
Tolentino qualifies: " It is not mere sexual infidelity that constitutes the ground for legal separation. Such infidelity must
constitute adultery or concubinage as defined by the Revised Penal Code." (Id. at 310). Further: "There would be no more legal
obstacle to a decree of legal separation at the instance of an offended wife, based on an act of infidelity for which the guilty
husband has been convicted of adultery upon the complaint of his paramour's husband so long as such act may also constitute
concubinage and can be proven in the legal separation proceedings. We submit that the new Code, by omitting the requirement of
criminal conviction of adultery or concubinage, as the case may be, has modified the doctrine in the case of Francisco v.
Tayao."(Id. at 311).

It may be noted that under Article 55(6) of the Family Code of the Philippines (Executive Order No. 209 as ammended) soon to
take effect, sexual infidelity or perversion of either spouse has replaced adultery on the part of the wife and concubinage on the
part of the husband as defined by the Revised Penal Code (Art. 97, New Civil Code) as one of the grounds for legal separation.

6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956).

7 Sec. 5, Rule 61 of the Rules of Court states:

Order.- The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require,
having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such
other circumstances as may aid in the proper elucidation of the question involved. If the application is granted, the court shall fix
the amount of money to be provissionally paid, and the terms of payment. If the application is denied, the trial of the principal
case on its merit shall be held as early as possible.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,

vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of
Negros Oriental and CLEMEN G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the
hearing of an action for legal separation before the lapse of six months from the filing of the petition, would
likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an
ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros
Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision,
which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed
since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the
husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by
petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife
who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As
will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought
to have acted differently. The plea for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge
against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an
attempt by him against her life being alleged. She likewise sought the issuance of a writ of preliminary
mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property,
then under the administration and management of respondent Clemente Ramos. There was an opposition to the
hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further manifested
by him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory injunction were
heard, the prospect of the reconciliation of the spouses would become even more dim. Respondent Judge
ordered the parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent Judge granting the motion of respondent Ramos to
suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is the order complained
of in this petition for certiorari. Respondents were required to answer according to our resolution of October 5,
1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a manifestation from
parties in the case submitting the matter without further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the
Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the
six-month period.

1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily
of course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is
resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a
relationship on which the law for the best reasons would attach the quality of permanence. That there are times
when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss
affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less
the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the
reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for
certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one
spouse against the life of the other,1 it recognizes, albeit reluctantly, that the couple is better off apart. A suit for
legal separation lies. Even then, the hope that the parties may settle their differences is not all together
abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her
ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period
before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone
in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower
court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were
otherwise, there would be a failure to abide by the literal language of such codal provision. That the law,
however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from
what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the
spouse shall be entitled to live separately from each other and manage their respective property. The husband
shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint
another to manage said property, in which case the administrator shall have the same rights and duties as a
guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders
of the court."2 There would appear to be then a recognition that the question of management of their respective
property need not be left unresolved even during such six-month period. An administrator may even be
appointed for the management of the property of the conjugal partnership. The absolute limitation from which
the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There
is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should
not be ignored by the lower court. There is all the more reason for this response from respondent Judge,
considering that the husband whom she accused of concubinage and an attempt against her life would in the
meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that
was not specifically denied by him. What was held by this Court in Araneta v. Concepcion,3 thus possesses
relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently
intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their
grievances against each other in court may only fan their already inflamed passions against one another, and the
lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical
expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such
as the determination of the custody of the children and alimony and support pendente lite according to the
circumstance ... The law expressly enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be
caused."4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six
months certainly had elapsed. Thus there can be no more impediment for the lower court acting on the motion
of petitioner for the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of
August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set
aside. Respondent Judge is directed to proceed without delay to hear the motion for preliminary mandatory
injunction. Costs against respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.

Separate Opinions

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

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

Separate Opinions

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

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

Footnotes

1 Article 97 of the Civil Code reads: "A petition for legal separation may be filed: (1) For adultery on the part of the wife and for
concubinage on the part of the husband as defined in the Penal Code; or (2) An attempt by one spouse against the life of the
other."
2 Art. 104, Civil Code.
3 99 Phil. 709 (1956).
4 Ibid., p. 712.

FIRST DIVISION

G.R. No. 153206 October 23, 2006

ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,

vs.
LUCITA G. ONG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review seeking the reversal of the Decision 1 of the Court of Appeals (CA) in
CA G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial Court (RTC) Branch 41,
Dagupan City granting the petition for legal separation filed by herein respondent, as well as the Resolution 2 of
the CA dated April 26, 2002 which denied petitioner’s motion for reconsideration.

Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married on July 13,
1975 at the San Agustin Church in Manila. They have three children: Kingston, Charleston, and Princeton who
are now all of the age of majority.3

On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the Family
Code4before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life with William
was marked by physical violence, threats, intimidation and grossly abusive conduct.5

Lucita claimed that: soon after three years of marriage, she and William quarreled almost every day, with
physical violence being inflicted upon her; William would shout invectives at her like "putang ina mo", "gago",
"tanga", and he would slap her, kick her, pull her hair, bang her head against concrete wall and throw at her
whatever he could reach with his hand; the causes of these fights were petty things regarding their children or
their business; William would also scold and beat the children at different parts of their bodies using the buckle
of his belt; whenever she tried to stop William from hitting the children, he would turn his ire on her and box
her; on December 9, 1995, after she protested with William’s decision to allow their eldest son Kingston to go
to Bacolod, William slapped her and said, "it is none of your business"; on December 14, 1995, she asked
William to bring Kingston back from Bacolod; a violent quarrel ensued and William hit her on her head, left
cheek, eye, stomach, and arms; when William hit her on the stomach and she bent down because of the pain, he
hit her on the head then pointed a gun at her and asked her to leave the house; she then went to her sister’s
house in Binondo where she was fetched by her other siblings and brought to their parents house in Dagupan;
the following day, she went to her parent’s doctor, Dr. Vicente Elinzano for treatment of her injuries. 6

William for his part denied that he ever inflicted physical harm on his wife, used insulting language against her,
or whipped the children with the buckle of his belt. While he admits that he and Lucita quarreled on December
9, 1995, at their house in Jose Abad Santos Avenue, Tondo, Manila, he claimed that he left the same, stayed in
their Greenhills condominium and only went back to their Tondo house to work in their office below. In the
afternoon of December 14, 1995, their laundrywoman told him that Lucita left the house. 7

On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal separation of
plaintiff and defendant, with all the legal effects attendant thereto, particularly the dissolution and
liquidation of the conjugal partnership properties, for which purpose the parties are hereby ordered to
submit a complete inventory of said properties so that the Court can make a just and proper division,
such division to be embodied in a supplemental decision.

SO ORDERED.8

The RTC found that:

It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and
misunderstanding which made both of their lives miserable and hellish. This is even admitted by the
defendant when he said that there was no day that he did not quarrel with his wife. Defendant had
regarded the plaintiff negligent in the performance of her wifely duties and had blamed her for not
reporting to him about the wrongdoings of their children. (citations omitted)

These quarrels were always punctuated by acts of physical violence, threats and intimidation by the
defendant against the plaintiff and on the children. In the process, insulting words and language were
heaped upon her. The plaintiff suffered and endured the mental and physical anguish of these marital
fights until December 14, 1995 when she had reached the limits of her endurance. The more than twenty
years of her marriage could not have been put to waste by the plaintiff if the same had been lived in an
atmosphere of love, harmony and peace. Worst, their children are also suffering. As very well stated in
plaintiff’s memorandum, "it would be unthinkable for her to throw away this twenty years of
relationship, abandon the comforts of her home and be separated from her children, whom she loves, if
there exists no cause, which is already beyond her endurance.9
William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated October 8, 2001, the
CA found that the testimonies for Lucita were straightforward and credible and the ground for legal separation
under Art. 55, par. 1 of the Family Code, i.e., physical violence and grossly abusive conduct directed against
Lucita, were adequately proven.10

As the CA explained:

The straightforward and candid testimonies of the witnesses were uncontroverted and credible. Dr.
Elinzano’s testimony was able to show that the [Lucita] suffered several injuries inflicted by [William].
It is clear that on December 14, 1995, she sustained redness in her cheek, black eye on her left eye, fist
blow on the stomach, blood clot and a blackish discoloration on both shoulders and a "bump" or
"bukol" on her head. The presence of these injuries was established by the testimonies of [Lucita] herself
and her sister, Linda Lim. The Memorandum/Medical Certificate also confirmed the evidence presented
and does not deviate from the doctor’s main testimony --- that [Lucita] suffered physical violence on
[sic] the hands of her husband, caused by physical trauma, slapping of the cheek, boxing and fist blows.
The effect of the so-called alterations in the Memorandum/Medical Certificate questioned by [William]
does not depart from the main thrust of the testimony of the said doctor.

Also, the testimony of [Lucita] herself consistently and constantly established that [William] inflicted
repeated physical violence upon her during their marriage and that she had been subjected to grossly
abusive conduct when he constantly hurled invectives at her even in front of their customers and
employees, shouting words like, "gaga", "putang ina mo," tanga," and "you don’t know anything."

These were further corroborated by several incidents narrated by Linda Lim who lived in their conjugal
home from 1989 to 1991. She saw her sister after the December 14, 1995 incident when she (Lucita)
was fetched by the latter on the same date. She was a witness to the kind of relationship her sister and
[William] had during the three years she lived with them. She observed that [William] has an "explosive
temper, easily gets angry and becomes very violent." She cited several instances which proved that
William Ong indeed treated her wife shabbily and despicably, in words and deeds.

xxx

That the physical violence and grossly abusive conduct were brought to bear upon [Lucita] by [William]
have been duly established by [Lucita] and her witnesses. These incidents were not explained nor
controverted by [William], except by making a general denial thereof. Consequently, as between an
affirmative assertion and a general denial, weight must be accorded to the affirmative assertion.

The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her sister. The
injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in front of their employees
and friends, are enough to constitute grossly abusive conduct. The aggregate behavior of [William]
warrants legal separation under grossly abusive conduct. x x x11

William filed a motion for reconsideration which was denied by the CA on April 26, 2002.12

Hence the present petition where William claims that:

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR

EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY THE
PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF REMOVING FROM PETITIONER THE
CONTROL AND OWNERSHIP OF THEIR CONJUGAL PROPERTIES AND TO TRANSFER THE
SAME TO PRIVATE RESPONDENT’S FAMILY.

II

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR

EVIDENCE REPUDIATING PRIVATE RESPONDENT’S CLAIM OF REPEATED PHYSICAL
VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE PART OF PETITIONER.13

William argues that: the real motive of Lucita and her family in filing the case is to wrest control and ownership
of properties belonging to the conjugal partnership; these properties, which include real properties in Hong
Kong, Metro Manila, Baguio and Dagupan, were acquired during the marriage through his (William’s) sole
efforts; the only parties who will benefit from a decree of legal separation are Lucita’s parents and siblings
while such decree would condemn him as a violent and cruel person, a wife-beater and child abuser, and will
taint his reputation, especially among the Filipino-Chinese community; substantial facts and circumstances have
been overlooked which warrant an exception to the general rule that factual findings of the trial court will not be
disturbed on appeal; the findings of the trial court that he committed acts of repeated physical violence against
Lucita and their children were not sufficiently established; what took place were disagreements regarding the
manner of raising and disciplining the children particularly Charleston, Lucita’s favorite son; marriage being a
social contract cannot be impaired by mere verbal disagreements and the complaining party must adduce clear
and convincing evidence to justify legal separation; the CA erred in relying on the testimonies of Lucita and her
witnesses, her sister Linda Lim, and their parent’s doctor, Dr. Vicente Elinzanzo, whose testimonies are tainted
with relationship and fraud; in the 20 years of their marriage, Lucita has not complained of any cruel behavior
on the part of William in relation to their marital and family life; William expressed his willingness to receive
respondent unconditionally however, it is Lucita who abandoned the conjugal dwelling on December 14, 1995
and instituted the complaint below in order to appropriate for herself and her relatives the conjugal properties;
the Constitution provides that marriage is an inviolable social institution and shall be protected by the State,
thus the rule is the preservation of the marital union and not its infringement; only for grounds enumerated in
Art. 55 of the Family Code, which grounds should be clearly and convincingly proven, can the courts decree a
legal separation among the spouses.14

Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present petition are factual;
the findings of both lower courts rest on strong and clear evidence borne by the records; this Court is not a trier
of facts and factual findings of the RTC when confirmed by the CA are final and conclusive and may not be
reviewed on appeal; the contention of William that Lucita filed the case for legal separation in order to remove
from William the control and ownership of their conjugal properties and to transfer the same to Lucita’s family
is absurd; Lucita will not just throw her marriage of 20 years and forego the companionship of William and her
children just to serve the interest of her family; Lucita left the conjugal home because of the repeated physical
violence and grossly abusive conduct of petitioner.15

Petitioner filed a Reply, reasserting his claims in his petition, 16 as well as a Memorandum where he averred for
the first time that since respondent is guilty of abandonment, the petition for legal separation should be denied
following Art. 56, par. (4) of the Family Code. 17 Petitioner argues that since respondent herself has given
ground for legal separation by abandoning the family simply because of a quarrel and refusing to return thereto
unless the conjugal properties were placed in the administration of petitioner’s in-laws, no decree of legal
separation should be issued in her favor.18

Respondent likewise filed a Memorandum reiterating her earlier assertions. 19

We resolve to deny the petition.

It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of the Rules of
Court. The rule finds more stringent application where the CA upholds the findings of fact of the trial court. In
such instance, this Court is generally bound to adopt the facts as determined by the lower courts. 20

The only instances when this Court reviews findings of fact are:

(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts
are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence on record; and (11)
when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different conclusion.21

As petitioner failed to show that the instant case falls under any of the exceptional circumstances, the general
rule applies.
Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by the records
or are based on substantial evidence.22 In this case, the findings of the RTC were affirmed by the CA and are
adequately supported by the records.

As correctly observed by the trial court, William himself admitted that there was no day that he did not quarrel
with his wife, which made his life miserable, and he blames her for being negligent of her wifely duties and for
not reporting to him the wrongdoings of their children.23

Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William displayed violent
temper against Lucita and their children; such as: when William threw a steel chair at Lucita; 24 threw chairs at
their children;25 slapped Lucita and utter insulting words at her; 26 use the buckle of the belt in whipping the
children;27pinned Lucita against the wall with his strong arms almost strangling her, and smashed the flower
vase and brick rocks and moldings leaving the bedroom in disarray; 28 shouted at Lucita and threw a directory at
her, in front of Linda and the employees of their business, because he could not find a draft letter on his
table;29 got mad at Charleston for cooking steak with vetchin prompting William to smash the plate with steak
and hit Charleston, then slapped Lucita and shouted at her "putang ina mo, gago, wala kang pakialam,
tarantado" when she sided with Charleston; 30 and the December 9 and December 14, 1995 incidents which
forced Lucita to leave the conjugal dwelling.31

Lucita also explained that the injuries she received on December 14, 1995, were not the first. As she related
before the trial court:

q. You stated on cross examination that the injuries you sustained on December 14, 1995 were the most
serious?

a. Unlike before I considered December 14, 1995 the very serious because before it is only on the arm
and black eye, but on this December 14, I suffered bruises in all parts of my body, sir.32

To these, all William and his witnesses, could offer are denials and attempts to downplay the said incidents. 33

As between the detailed accounts given for Lucita and the general denial for William, the Court gives more
weight to those of the former. The Court also gives a great amount of consideration to the assessment of the trial
court regarding the credibility of witnesses as trial court judges enjoy the unique opportunity of observing the
deportment of witnesses on the stand, a vantage point denied appellate tribunals. 34 Indeed, it is settled that the
assessment of the trial court of the credibility of witnesses is entitled to great respect and weight having had the
opportunity to observe the conduct and demeanor of the witnesses while testifying.35

In this case, the RTC noted that:

William’s denial and that of his witnesses of the imputation of physical violence committed by him
could not be given much credence by the Court. Since the office secretary Ofelia Rosal and the family
laundrywoman Rosalino Morco are dependent upon defendant for their livelihood, their testimonies may
be tainted with bias and they could not be considered as impartial and credible witnesses. So with
Kingston Ong who lives with defendant and depends upon him for support.36

Parenthetically, William claims that that the witnesses of Lucita are not credible because of their relationship
with her. We do not agree. Relationship alone is not reason enough to discredit and label a witness’s testimony
as biased and unworthy of credence37 and a witness’ relationship to one of the parties does not automatically
affect the veracity of his or her testimony.38 Considering the detailed and straightforward testimonies given by
Linda Lim and Dr. Vicente Elinzano, bolstered by the credence accorded them by the trial court, the Court finds
that their testimonies are not tainted with bias.

William also posits that the real motive of Lucita in filing the case for legal separation is in order for her side of
the family to gain control of the conjugal properties; that Lucita was willing to destroy his reputation by filing
the legal separation case just so her parents and her siblings could control the properties he worked hard for.
The Court finds such reasoning hard to believe. What benefit would Lucita personally gain by pushing for her
parents’ and siblings’ financial interests at the expense of her marriage? What is more probable is that there
truly exists a ground for legal separation, a cause so strong, that Lucita had to seek redress from the courts. As
aptly stated by the RTC,
 ...it would be unthinkable for her to throw away this twenty years of relationship, abandon the comforts
of her home and be separated from her children whom she loves, if there exists no cause, which is
already beyond her endurance.39

The claim of William that a decree of legal separation would taint his reputation and label him as a wife-beater
and child-abuser also does not elicit sympathy from this Court. If there would be such a smear on his reputation
then it would not be because of Lucita’s decision to seek relief from the courts, but because he gave Lucita
reason to go to court in the first place.

Also without merit is the argument of William that since Lucita has abandoned the family, a decree of legal
separation should not be granted, following Art. 56, par. (4) of the Family Code which provides that legal
separation shall be denied when both parties have given ground for legal separation. The abandonment referred
to by the Family Code is abandonment without justifiable cause for more than one year. 40 As it was established
that Lucita left William due to his abusive conduct, such does not constitute abandonment contemplated by the
said provision.

As a final note, we reiterate that our Constitution is committed to the policy of strengthening the family as a
basic social institution.41 The Constitution itself however does not establish the parameters of state protection to
marriage and the family, as it remains the province of the legislature to define all legal aspects of marriage and
prescribe the strategy and the modalities to protect it and put into operation the constitutional provisions that
protect the same.42With the enactment of the Family Code, this has been accomplished as it defines marriage
and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family
life, as well as prescribes the grounds for declaration of nullity and those for legal separation. 43 As Lucita has
adequately proven the presence of a ground for legal separation, the Court has no reason but to affirm the
findings of the RTC and the CA, and grant her the relief she is entitled to under the law.

WHEREFORE, the petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

Panganiban, C.J. (Chairperson), Ynares-Santiago, Callejo, Sr., and Chico-Nazario, JJ., concur.
Footnotes
1
Rollo, pp. 30-44; penned by Associate Justice Delilah Vidallon-Magtolis and concurred in by Associate Justices Teodoro P. Regino and
Josefina Guevara-Salonga.
2
Rollo, p. 46.
3
See records, p. 1.
4
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of petitioner;
xxx
5
Records, p. 2.
6
Rollo, pp. 49-51 (RTC Decision).
7
Id. at 53 (RTC Decision).
8
Rollo, p. 56.
9
Id. at 55.
10
Id. at 40-44.
11
Rollo, pp. 40-42.
12
Id. at 46.
13
Id. at 8-9.
14
Rollo, pp. 9-24.
15
Id. at 149-152.
16
Id. at 157-169.
17
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
xxx
(4) Where both parties have given ground for legal separation;
xxx
Rollo, pp. 210-236.
18
Id. at 221.
19
Id. at 188-203.
20
Mangonon v. Court of Appeals, G.R. No. 125041, June 30, 2006.
21
Id.
22
Potenciano v. Reynoso, 449 Phil. 396, 405-406 (2003).
23
TSN, Ong Eng Kiam, September 25, 1997, pp. 29-32.
24
TSN, Lucita Ong, June 11, 1997, p. 14.
25
Id. at 20.
26
Id. at 21.
27
Id. at 23.
28
TSN, Linda Lim, June 25, 1997, p. 5.
29
Id. at 5-6.
 30
Id. at 7-8.
31
TSN, Lucita Ong, May 9, 1997, pp. 9-11, 16.
32
Id. at 21.
33
See TSN, Ong Eng Kiam, September 25, 1997, pp. 11, 53; TSN, Kingston Ong, September 24, 1997, pp. 16-18.
34
Roca v. Court of Appeals, 403 Phil. 326, 333 (2001).
35
Cirelos v. Hernandez, G.R. No. 146523, June 15, 2006; Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353, 364.
36
Rollo, p. 56.
37
Roca v. Court of Appeals, supra note 34 at 334.
38
Philippine Airlines, Inc. v. Court of Appeals, G.R. No. 127473, December 8, 2003, 417 SCRA 196, 207.
39
Rollo, p. 55.
40
Art. 55. A petition for legal separation may be filed on any of the following grounds
…
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
41
Tuason v. Court of Appeals, 326 Phil. 169, 180 (1996).
42
Antonio v. Reyes, supra note 35 at 372.
43
Id. at 372.

SECOND DIVISION

G.R. No. 196842 October 9, 2013

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.

DECISION

PEREZ, J.:

Before us is a petition for certiorari seeking to annul and set aside the Resolution of the Ombudsman dated 17
April 20091 and Order dated October 2010,2 which directed the tiling of an Information for Concubinage under
Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A. Busuego (Alfredo).

We chronicle the facts thus.

Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334 of the
Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and Their
Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the Office of the
Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao Regional Hospital,
Apokon, Tagum City.

In her complaint, Rosa painted a picture of a marriage in disarray.

She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union was blessed
with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in 1983, their marriage
turned sour. At this time, Rosa unearthed photographs of, and love letters addressed to Alfredo from, other
women. Rosa confronted Alfredo who claimed ignorance of the existence of these letters and innocence of any
wrongdoing.

Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home late at
night on weekdays and head early to work the next day; his weekends were spent with his friends, instead of
with his family. Rosa considered herself lucky if their family was able to spend a solid hour with Alfredo.

Around this time, an opportunity to work as nurse in New York City, United States of America (US) opened up
for Rosa. Rosa informed Alfredo, who vehemently opposed Rosa’s plan to work abroad. Nonetheless, Rosa
completed the necessary requirements to work in the US and was scheduled to depart the Philippines in March
1985.

Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working abroad.
Furious with Rosa’s pressing, Alfredo took his loaded gun and pointed it at Rosa’s right temple, threatening and
taunting Rosa to attempt to leave him and their family. Alfredo was only staved off because Rosa’s mother
arrived at the couple’s house. Alfredo left the house in a rage: Rosa and her mother heard gun shots fired
outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa became homesick
and was subsequently joined by her children who were brought to the US by Alfredo. Rosa singularly reared
them: Alfred, from grade school to university, while Robert, upon finishing high school, went back to Davao
City to study medicine and lived with Alfredo.

During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was Rosa who
would remit money to Alfredo from time to time, believing that Alfredo had stopped womanizing. Rosa
continued to spend her annual vacation in Davao City.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home. When Rosa
asked Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital in Tagum who was in
a sorry plight as she was allegedly being raped by Rosa’s brother-in-law. To get her out of the situation, Alfredo
allowed Sia to live in their house and sleep in the maids’ quarters. At that time, Rosa gave Alfredo the benefit of
the doubt.

In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships. Robert, who was already living
in Davao City, called Rosa to complain of Alfredo’s illicit affairs and shabby treatment of him. Rosa then rang
up Alfredo which, not surprisingly, resulted in an altercation. Robert executed an affidavit, corroborating his
mother’s story and confirming his father’s illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia slept with his father
in the conjugal bedroom.

2. He did not inform his mother of that odd arrangement as he did not want to bring trouble to their
family.

3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s mistress.

4. During this period of concubinage, Sia was hospitalized and upon her discharge, she and Alfredo
resumed their cohabitation.

5. The relationship between Alfredo and Sia ended only when the latter found another boyfriend. 6. His
father next took up an affair with Julie de Leon (de Leon) whom Robert met when de Leon fetched
Alfredo on one occasion when their vehicle broke down in the middle of the road.

7. Robert read various Short Message Service (SMS) exchanges between Julie and Alfredo on Alfredo’s
mobile phone.

8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and Alfredo’s conjugal dwelling and
stayed in the conjugal room the entire nights thereof.

The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint affidavit in
support of Rosa’s allegations:

1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.

2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and slept overnight
with Alfredo in the conjugal room.

As a result, Rosa and their other son Alfred forthwith flew to Davao City without informing Alfredo of their
impending return. Upon Rosa’s return, she gathered and consolidated information on her husband’s sexual
affairs.

Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averred that during the
course of their marriage, apart from the marital infidelity, Alfredo physically and verbally abused her and her
family. On one occasion after Rosa confirmed the affairs, Alfredo threatened their family, including other
members of their household that he will gun them down should he chance upon them in Tagum City. Lastly, on
22 March 2006, Alfredo purportedly dismissed house helper Liza Diambangan and threatened her.

As expected, Alfredo, in his counter-affidavit, denied all accusations against him and alleged that:
 1. Rosa, despite his pleas for them to remain and raise their family in the Philippines, chose to live in the
US, separate from him.

2. Rosa’s allegations that he had kept photographs of, and love letters from, other women, were only
made to create a cause of action for the suit for Legal Separation which Rosa filed sometime in 1998.

3. It was highly improbable that he committed acts of concubinage with Sia and de Leon since from the
time he became Chief of Hospital of the Davao Regional Hospital in Tagum City, he practically stayed
all days of the work week in the hospital. The instances he went home were few and far between, only to
check on the house and provide for household expenses.

4. When Robert returned to Davao City and lived with him, it became more impossible for him to have
shacked up with Sia and de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without admitting to anything, that Sia, for a time,
may have lived in his and Rosa’s conjugal house, staying at the maids’ quarters. However, at no instance
did he keep Sia as his mistress in the conjugal dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayed with de Leon in
the conjugal room, Alfredo pointed out that said dates were busiest days of the year in the hospital
where his presence as Chief of Hospital is most required.

7. By Rosa’s own admission, she first learned of Alfredo’s alleged concubinage in 1997, and yet she still
continued with her yearly visits to Alfredo in Davao City. Those instances ought to be construed as
condonation of the concubinage.

8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with Alfredo as
party-respondents in the complaint in violation of Article 344 of the Revised Penal Code.

Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262 and Grave Threats. He
claimed that, at no time, did he threaten, the lives or, to harm his wife, their family and members of their
household. He only berated the help for perpetrating gossip about his behavior and conduct.

In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo’s culpability, and naturally,
Alfredo claimed innocence.

In the course thereof, the procedural issue of Rosa’s failure to implead Sia and de Leon as respondents cropped
up. Alfredo insisted that Rosa’s complaint ought to be dismissed for failure to implead his alleged concubines as
respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both Rosa and
Alfredo were represented by their respective counsels:

x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for Concubinage
pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to the amendment of the
complaint, at this point in time, due to the alleged procedural lapse committed by Rosa, this Office explained to
the parties that the position of Alfredo would just prolong the conduct of the preliminary investigation since
Rosa can just re-file her complaint. The doctrine of res judicata does not apply in the preliminary investigation
stage. Hence, the counsel for Rosa was directed to submit to this Office the addresses of the alleged mistresses
so that they could be served with the Order directing them to file their counter-affidavits.

Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy Sia. x x x. 3

On 24 June 2008, the Ombudsman issued a Joint Order 4 impleading Sia and de Leon as party-respondents in the
complaint for Concubinage and directing them to submit their respective counter-affidavits within a period of
time. Copies of the Joint Order were mailed to Sia’s and de Leon’s last known addresses, as provided by Rosa
to the Ombudsman.

Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to Sia’s last
known address was returned to the Ombudsman with the notation on the Registry Return Receipt No. 1624
"Return to Sender; removed," while a copy thereof to de Leon was received on 3 September 2008 by Ananias
de Leon.5
Apparently still opposed to the Ombudsman’s ruling to simply amend the complaint and implead therein
Alfredo’s alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with Motion to Dismiss
and/or Refer the charges to the Appropriate Provincial/City Prosecutor 6 praying for dismissal of the complaint
for: (1) failure to implead the two mistresses in violation of Article 344 of the Revised Penal Code; and in the
alternative, (2) referral of the complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular
No. 95-001.

Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the procedural issues:

Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary issues raised
by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory pleading by resorting to a
procedural short cut which would result to the delay in the disposition of this case; and 2.) the criminal charges
imputed are not in relation to office, hence, the Office of the Provincial/City Prosecutor shall investigate and
prosecute this case pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.

On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit the alleged
deficiency in the complaint. Rosa also explained in her Reply that the names of the mistresses were
categorically mentioned in the complaint. She averred that this Office is empowered to investigate and
prosecute any act or omission of a public official or employee to the exclusion of non-government employees.
She stated that the inclusion of the alleged concubines in the Information to be filed in court is a matter of
procedure, within the competence of the investigating prosecutor.

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was
conducted. It was explained in the said hearing the need to implead the alleged concubines in this case pursuant
to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the
addresses of the alleged concubines. Busuego’s position that the said short cut procedure would delay the
proceedings is misplaced. If the case will be dismissed based on procedural infirmity, Rosa could still amend
her complaint and re-file this case since the doctrine of res judicata does not apply in the preliminary
investigation stage of the proceedings.

On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor was belatedly
filed. Record would show that the motion praying for the referral of this case to the Office of the City
Prosecutor was filed on 17 July 2008, after the parties have already filed all their pleadings and the case is now
ripe for resolution. Further, referral to the said office is not mandatory as cited in the said Joint Circular. 7

In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and Sia of
Concubinage and directed the filing of an Information against them in the appropriate court:

WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article 334 of the
Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY
SIA, are probably guilty thereof.

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.) Grave
Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women and
Children Act), are hereby DISMISSED for lack of merit.8

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s ruling on the automatic
inclusion of Sia as respondent in the complaint and their indictment for the crime of Concubinage. Alfredo is
adamant that Rosa’s complaint should have, at the outset, impleaded his alleged concubines. Failing such, the
Ombudsman cannot resort to automatic inclusion of party-respondents, erroneously finding him and Sia prima
facie culpable for Concubinage. For good measure, Alfredo pointed out that from Rosa’s own allegations, she
had condoned or pardoned Alfredo’s supposed concubinage. Alfredo likewise submitted Liza S. Diambangan’s
affidavit, recanting her previous affidavit corroborating Rosa’s charges.

Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for Reconsideration was
filed out of time, and gave scant attention to Liza S. Diambangan’s affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby DENIED. The
findings in the questioned Resolution hereby remains undisturbed. Let the Information for Concubinage be filed
in the proper court against herein Busuego.9

Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the Ombudsman’s
finding of probable cause to indict him and Sia for Concubinage. Alfredo’s badges of grave abuse of discretion
are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the complaint;

2. The Ombudsman did not refer the complaint to the Department of Justice, considering that the offense
of Concubinage is not committed in relation to his office as Chief of Hospital;

3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s supposed Concubinage when she
alleged in the complaint that she had known of Alfredo’s womanizing and believed him to have changed
his ways;

4. The Ombudsman did not take into consideration the affidavit of recantation of Liza Diambangan; and

5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.

We sustain the Ombudsman.

The Ombudsman has full discretionary authority in the determination of probable cause during a preliminary
investigation.10 This is the reason why judicial review of the resolution of the Ombudsman in the exercise of its
power and duty to investigate and prosecute felonies and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction.
Courts are not empowered to substitute their judgment for that of the Ombudsman.11

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction.12 The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 13 In this regard,
petitioner failed to demonstrate the Ombudsman's abuse, much less grave abuse, of discretion.

First. Alfredo insists that the Ombudsman’s automatic inclusion, over his vehement objections of Sia and de
Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules
of Court, which respectively provide:

Art. 344. Prosecution of the 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.

Section 5. Who must prosecute criminal action. – xxx.

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 the guilty parties, if both are
alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.

We do not agree.

The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions of its Rules
of Procedure. Thus:

Rule II
PROCEDURE IN CRIMINAL CASES

xxxx
Section 2. Evaluation – Upon evaluating the complaint, the investigating officer shall recommend whether it
may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

xxxx

Section 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of
the Rules of Court, subject to the following provisions:

a) x x x

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting documents, directing the respondents to submit,
within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of
service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.

c) If the respondents does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have
access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.

Neither may a motion for a bill of particulars be entertained.

If respondent desires any matter in the complainant’s affidavit to be clarified, the particularization
thereof may be done at the time of the clarificatory questioning in the manner provided in paragraph (f)
of this section.

e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis
of the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to
the case which the investigating officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be present but without the right to
examine or cross-examine the witness being questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall be reduced into writing and
served on the witness concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the
records of the case together with his resolution to the designated authorities for their appropriate action
thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of
the ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the proper Deputy
Ombudsman in all other cases. (Emphasis supplied).
Notably, Rosa’s complaint contained not just the Concubinage charge, but other charges: violation of Republic
Act No. 9262 and Grave Threats. Upon the Ombudsman’s perusal, the complaint was supported by affidavits
corroborating Rosa’s accusations. Thus, at that stage, the Ombudsman properly referred the complaint to
Alfredo for comment. Nonetheless, while the Ombudsman found no reason for outright dismissal, it deemed it
fit to hold a clarificatory hearing to discuss the applicability of Article 344 of the Revised Penal Code, the issue
having been insisted upon by Alfredo.

Surely the procedural sequence of referral of the complaint to respondent for comment and thereafter the
holding of a clarificatory hearing is provided for in paragraph b, Section 2 and paragraphs d and f, Section 4 of
Rule II, which we have at the outset underscored. Thus did the Ombudsman rule:

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was
conducted. It was explained in the said hearing the need to implead the alleged concubines in this case pursuant
to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the
addresses of the alleged concubines. Busuego’s position that the said short cut procedure would delay the
proceedings is misplaced. If the case will be dismissed based on procedural infirmity, Rosa could still amend
her complaint and re-file this case since the doctrine of res judicata does not apply in the preliminary
investigation stage of the proceedings.14

The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out by Alfredo.
We agree with the Ombudsman that it would be superfluous to dismiss the complaint when amendment thereof
is allowed by its Rules of Procedure15 and the Rules of Court.16

Second. Alfredo claims that the Ombudsman should have referred Rosa’s complaint to the Department of
Justice (DOJ), since the crime of Concubinage is not committed in relation to his being a public officer. This is
not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation of
crimes involving public officers, without regard to its commission in relation to office, had long been settled in
Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ,17 and affirmed in subsequent cases:

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation
of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against
public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the
Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any
stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to
conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular
No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE

OMBUDSMAN

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY

PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES, THE

CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND
THEIR ASSISTANTS.
x---------------------------------------------------------------------------------------x

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE,
discussion centered around the latest pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance in the investigation and prosecution
of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was
Republic Act No. 7975 otherwise known as "AN ACT TO STRENGTHEN THE FUNCTIONAL AND
STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE
PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its implications on the jurisdiction of the office of
the Ombudsman on criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the
OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural conflicts in the
filing of complaints against public officers and employees, the conduct of preliminary investigations, the
preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and
their assistants as DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.

Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, in a
series of consultations, have agreed on the following guidelines to be observed in the investigation and
prosecution of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and employees IN
RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN or the REGULAR
COURTS, and whether filed with the OFFICE OF THE OMBUDSMAN or with the OFFICE OF THE
PROVINCIAL/CITY PROSECUTOR shall be under the control and supervision of the office of the
OMBUDSMAN.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses
NOT IN RELATION TO OFFICE and cognizable by the REGULAR COURTS shall be investigated
and prosecuted by the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR, which shall rule thereon
with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer who
conducted the preliminary investigation. Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the appropriate approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over public officers and
employees and for effective monitoring of all investigations and prosecutions of cases involving public
officers and employees, the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall submit to the
OFFICE OF THE OMBUDSMAN a monthly list of complaints filed with their respective offices
against public officers and employees.

xxxx

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal
agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective
December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations –

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in
their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has personally examined the complainant
and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on
the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or
direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio,
the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman.

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed
with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including
those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that
in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their
investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action.
Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his
deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman or his deputy.

xxxx

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any
public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all
prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ circular is a mere superfluity.
The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary
investigation for complaints filed with it because the DOJ’s authority to act as the principal law agency of the
government and investigate the commission of crimes under the Revised Penal Code is derived from the
Revised Administrative Code which had been held in the Natividad case citation omitted as not being contrary
to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an
agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation. (Emphasis supplied).

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged with coup
d’etat for the occupation of Oakwood on 27 July 2003, the preliminary investigation therefor was conducted by
the DOJ. Honasan questioned the jurisdiction of the DOJ to do so, proferring that it was the Ombudsman which
had jurisdiction since the imputed acts were committed in relation to his public office. We clarified that the DOJ
and the Ombudsman have concurrent jurisdiction to investigate offenses involving public officers or employees.
Nonetheless, we pointed out that the Ombudsman, in the exercise of its primary jurisdiction over cases
cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation of such cases. Plainly, applying that ruling in this case, the Ombudsman has
primary jurisdiction, albeit concurrent with the DOJ, over Rosa’s complaint, and after choosing to exercise such
jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In other words, the
Ombudsman may exercise jurisdiction to the exclusion of the DOJ.

Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of his
womanizing and yet continuing with their relationship as demonstrated in Rosa’s annual visits to him in Davao
City.

We are not convinced.

Old jurisprudence has held that the cynosure in the question of whether the wife condoned the concubinage lies
in the wife’s "line of conduct under the assumption that she really believed [her husband] guilty of
concubinage:"

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.’

xxxx

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 necessarily implied forgiveness. It is
entirely consonant with reason and justice that if 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).18

Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the holding
therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosa’s admission was that
she believed her husband had stopped womanizing, not that she had knowledge of Alfredo’s specific acts of
concubinage with Sia and de Leon, specifically keeping them in the conjugal dwelling. This admission set
against the specific acts of concubinage listed in Article 334 19 of the Revised Penal Code does not amount to
condonation. Their continued cohabitation as husband and wife construed from Rosa’s annual visits to Davao
City is not acquiescence to Alfredo’s relations with his concubines. On that score, we have succinctly held:

We can find nothing in the record which can be construed as pardon or condonation. It is true that the offended
party has to a considerable extent been patient with her husband's shortcomings, but that seems to have been
due to his promises of improvement; nowhere does it appear that she has consented to her husband's immorality
or that she has acquiesced in his relations with his concubine.20

Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to eliminate his probable
culpability for concubinage.

Again, we are not swayed by Alfredo’s asseverations.

We have generally looked with disfavor upon retraction of testimonies previously given in court. Affidavits of
recantation are unreliable and deserve scant consideration. The asserted motives for the repudiation are
commonly held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently
and deservedly subject to serious doubt.21

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false and that what he now says is true, is not
sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized
into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory statement x x
x not that a previous statement is presumed to be false merely because a witness now says that the same is not
true. The jurisprudence of this Court has always been otherwise, i.e., that contradictory testimony given
subsequently does not necessarily discredit the previous testimony if the contradictions are satisfactorily
explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of justice in
an open and free trial and under conditions precisely sought to discourage and forestall falsehood simply
because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make
solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. Unless
there be special circumstances which, coupled with the retraction of the witness, really raise doubt as to the
truth of the testimony given by him at the trial and accepted by the trial judge, and only if such testimony is
essential to the judgment of conviction, or its elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be justified.22

In this case, Liza S. Diambangan’s testimony merely corroborates the still standing story of Robert and Melissa
Diambangan, the other helper in the Busuego household. Clearly, the two’s consistent story may still be the
basis of the Ombudsman’s finding of a prima facie case of concubinage against Alfredo and Sia.

Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for indicting him and Sia
for concubinage.

Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:

(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous circumstances, with a
woman who is not his wife; and (3) cohabiting with a woman who is not his wife in any other place.

The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of Robert, Melissa S.
Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal dwelling where Sia even stayed
at the conjugal room. We completely agree with the Ombudsman’s disquisition:
x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family and would strive
to keep the family harmonious and united. This is the very reason why Robert did not inform his mother about
his father’s infidelities during the time when his father was keeping his mistress at the conjugal dwelling. A son
would never turn against his father by fabricating such a serious story which will cause his home to crumble, if
such is not true. His natural instinct is to protect his home, which he did when he kept silent for a long time.
What broke the camel’s back was the abusive treatment he allegedly suffered and the thought that things would
change for the better if his mom would intervene.

The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S. Diambangan and Liza
S. Diambangan, who were employed by the family. Melissa was with the Busuego family in their conjugal
home in 1997. She left the family in 2005 but returned in 2006.1âwphi1 Liza started working with the family in
2002. Melissa revealed that it was Emy Sia who recruited her to work with the Busuego family. They both
attested to the fact that Alfredo and Emy Sia slept together in the bedroom of Alfredo but Emy Sia would sleep
in the maid’s quarter when Rosa and Alfred came home for a visit in 1997. They recalled that Emy Sia calls
Alfredo "papa". They narrated that Emy Sia would even confide to them some private matters relating to her
sexual proclivities with Alfredo.23

We further note that the presence of Sia at the Busuego household and her interim residence thereat was not
disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in the conjugal dwelling, but
never as his mistress, and Sia supposedly slept in the maids’ quarters.

While such a claim is not necessarily preposterous we hold that such is a matter of defense which Alfredo
should raise in court given that Rosa s complaint and its accompanying affidavits have created a prima facie
case for Concubinage against Alfredo and Sia.

WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009 and 11
October 2010 are AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson s Attestation, I certify that
the conclusions in the above Decision had been reached n consultation before the case was assigned to the
writer of the opinion of the Court s Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1
Rollo, pp. 242-272.
2
Id. at 317-321.
3
Id. at 255-256.
4
Id. at 233-236.
5
Id. at 256.
6
Id. at 237-241.
7
Id. at 258-259.
8
Id. at 270-271.
9
Id. at 320.
10
Kalalo v. Office of the Ombudsman, G.R. No. 158189, 23 April 2010, 619 SCRA 141, 148.
11
Asetre v. Asetre, G.R. No. 171536, 7 April 2009, 584 SCRA 471, 483.
12
Casing v. Ombudsman, G.R. No. 192334, 13 June 2012, 672 SCRA 500, 508.
13
Id.
14
Rollo, pp. 258-259.
15
Rule V, Section 3. Rules of Court, application. In all matters not provided in these rules, the Rules of Court shall apply in a suppletory
character, or by analogy whenever practicable and convenient.
16
Rule 110, Section 14. Amendment or substitution. – A complaint or information may be amended, in form or in substance, without leave
of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of the accused.
17
G.R. No, 159747, 13 April 2004, 427 SCRA 46, 70-75.
18
Bugayong v. Ginez, 100 Phil. 616, 620-623 (1956).
19
Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision
correccional in its minimum and medium periods. The concubine shall suffer the penalty of destierro.
20
People v. Francisco, 55 Phil. 1008, 1011 (1930).
21
Firaza v. People, 547 Phil. 572, 584 (2007).
22
Id. at 584-585.
23
Rollo, pp. 262-263.

SECOND DIVISION

[ G.R. No. 169900. March 18, 2010 ]

MARIO SIOCHI, PETITIONER, VS. ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE,
INTER-DIMENSIONAL REALTY, INC., AND ELVIRA GOZON, RESPONDENTS.

[G.R. NO. 169977]

INTER-DIMENSIONAL REALTY, INC., PETITIONER, VS. MARIO SIOCHI, ELVIRA GOZON,

ALFREDO GOZON, AND WINIFRED GOZON, RESPONDENTS.

RESOLUTION

CARPIO, J.:

This is a consolidation of two separate petitions for review, [1] assailing the 7 July 2005 Decision [2] and the 30
September 2005 Resolution[3] of the Court of Appeals in CA-G.R. CV No. 74447.

This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357. [4] The property is situated
in Malabon, Metro Manila and is registered in the name of "Alfredo Gozon (Alfredo), married to Elvira Gozon
(Elvira)."

On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a petition for legal
separation against her husband Alfredo. On 2 January 1992, Elvira filed a notice of lis pendens, which was then
annotated on TCT No. 5357.

On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario Siochi (Mario) entered
into an Agreement to Buy and Sell[5] (Agreement) involving the property for the price of P18 million. Among
the stipulations in the Agreement were that Alfredo would: (1) secure an Affidavit from Elvira that the property
is Alfredo's exclusive property and to annotate the Agreement at the back of TCT No. 5357; (2) secure the
approval of the Cavite RTC to exclude the property from the legal separation case; and (3) secure the removal
of the notice of lis pendens pertaining to the said case and annotated on TCT No. 5357. However, despite
repeated demands from Mario, Alfredo failed to comply with these stipulations. After paying the P5 million
earnest money as partial payment of the purchase price, Mario took possession of the property in September
1993. On 6 September 1993, the Agreement was annotated on TCT No. 5357.

Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision [6] in the legal separation case, the dispositive
portion of which reads:

WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and respondent.
Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from respondent Alfredo Gozon
without dissolution of their marriage bond. The conjugal partnership of gains of the spouses is hereby declared
DISSOLVED and LIQUIDATED. Being the offending spouse, respondent is deprived of his share in the net
profits and the same is awarded to their child Winifred R. Gozon whose custody is awarded to petitioner.

Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her needs arises.

SO ORDERED.[7]

As regards the property, the Cavite RTC held that it is deemed conjugal property.

On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their daughter, Winifred
Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled TCT No. 5357 and issued TCT No.
M-10508[8] in the name of Winifred, without annotating the Agreement and the notice of lis pendens on TCT
No. M-10508.

On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney [9] executed in his favor by Winifred,
sold the property to Inter-Dimensional Realty, Inc. (IDRI) for P18 million. [10] IDRI paid Alfredo P18 million,
representing full payment for the property.[11]Subsequently, the Register of Deeds of Malabon cancelled TCT
No. M-10508 and issued TCT No. M-10976[12] to IDRI.

Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for Specific Performance
and Damages, Annulment of Donation and Sale, with Preliminary Mandatory and Prohibitory Injunction and/or
Temporary Restraining Order.

On 3 April 2001, the Malabon RTC rendered a decision,[13] the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

01. On the preliminary mandatory and prohibitory injunction:

1.1 The same is hereby made permanent by:

1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty, Inc. and Gil Tabije,
their agents, representatives and all persons acting in their behalf from any attempt of commission or
continuance of their wrongful acts of further alienating or disposing of the subject property;
1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from entering and fencing the property;
1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty, Inc. to respect
plaintiff's possession of the property.

02. The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant Alfredo Gozon is
hereby approved, excluding the property and rights of defendant Elvira Robles-Gozon to the undivided one-half
share in the conjugal property subject of this case.
03. The Deed of Donation dated 22 August 1994, entered into by and between defendants Alfredo Gozon and
Winifred Gozon is hereby nullified and voided.
04. The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred Gozon, through
defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty, Inc. is hereby nullified and voided.
05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer Certificate of Title No.
M-10976 to the Register of Deeds of Malabon, Metro Manila.
06. The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel Certificate of Title Nos. 10508
"in the name of Winifred Gozon" and M-10976 "in the name of Inter-Dimensional Realty, Inc.," and to restore
Transfer Certificate of Title No. 5357 "in the name of Alfredo Gozon, married to Elvira Robles" with the
Agreement to Buy and Sell dated 31 August 1993 fully annotated therein is hereby ordered.
07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor of plaintiff over his
one-half undivided share in the subject property and to comply with all the requirements for registering such
deed.
08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling price of her undivided
one-half share in the subject property, thereafter, to execute and deliver a Deed of Absolute Sale over the same
in favor of the plaintiff and to comply with all the requirements for registering such deed, within fifteen (15)
days from the receipt of this DECISION.
09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of Four Million Pesos
(P4,000,000.00) in his one-half undivided share in the property to be set off by the award of damages in
plaintiff's favor.
10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they had agreed upon for the
sale of her one-half undivided share in the subject property.
11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay the plaintiff, jointly
and severally, the following:

11.1 Two Million Pesos (P2,000,000.00) as actual and compensatory damages;

11.2 One Million Pesos (P1,000,000.00) as moral damages;
11.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages;
11.4 Four Hundred Thousand Pesos (P400,000.00) as attorney's fees; and
11.5 One Hundred Thousand Pesos (P100,000.00) as litigation expenses.
11.6 The above awards are subject to set off of plaintiff's obligation in paragraph 9 hereof.

12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay Inter-Dimensional Realty, Inc.
jointly and severally the following:

12.1 Eighteen Million Pesos (P18,000,000.00) which constitute the amount the former received from the latter
pursuant to their Deed of Absolute Sale dated 26 October 1994, with legal interest therefrom;
12.2 One Million Pesos (P1,000,000.00) as moral damages;
12.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages; and
12.4 One Hundred Thousand Pesos (P100,000.00) as attorney's fees.

13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of suit.

SO ORDERED.[14]

On appeal, the Court of Appeals affirmed the Malabon RTC's decision with modification. The dispositive
portion of the Court of Appeals' Decision dated 7 July 2005 reads:

WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC, Branch 74, Malabon
is hereby AFFIRMED with MODIFICATIONS, as follows:

1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is declared null and
void for the following reasons:

a) The conveyance was done without the consent of defendant-appellee Elvira Gozon;
b) Defendant Alfredo Gozon's one-half (½) undivided share has been forfeited in favor of his daughter,
defendant Winifred Gozon, by virtue of the decision in the legal separation case rendered by the RTC, Branch
16, Cavite;

2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount of P5 Million which
the latter paid as earnest money in consideration for the sale of the subject land;
3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay plaintiff-appellant
Siochi jointly and severally, the following:

a) P100,000.00 as moral damages;

b) P100,000.00 as exemplary damages;
c) P50,000.00 as attorney's fees;
d) P20,000.00 as litigation expenses; and
e) The awards of actual and compensatory damages are hereby ordered deleted for lack of basis.

4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendant-appellant IDRI jointly
and severally the following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and
c) P50,000.00 as attorney's fees.

Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon was awarded, is
hereby given the option whether or not to dispose of her undivided share in the subject land.

The rest of the decision not inconsistent with this ruling stands.

SO ORDERED.[15]

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario alleges that the
Agreement should be treated as a continuing offer which may be perfected by the acceptance of the other
spouse before the offer is withdrawn. Since Elvira's conduct signified her acquiescence to the sale, Mario prays
for the Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale over the property upon his
payment of P9 million to Elvira.

On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI prays that the Court
should uphold the validity of IDRI's TCT No. M-10976 over the property.

We find the petitions without merit.

This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the property occurred
after the effectivity of the Family Code, the applicable law is the Family Code. Article 124 of the Family Code
provides:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall prevail, subject to the recourse to the court by the
wife for a proper remedy, which must be availed of within five years from the date of the contract implementing
such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis
supplied)

In this case, Alfredo was the sole administrator of the property because Elvira, with whom Alfredo was
separated in fact, was unable to participate in the administration of the conjugal property. However, as sole
administrator of the property, Alfredo still cannot sell the property without the written consent of Elvira or the
authority of the court. Without such consent or authority, the sale is void. [16] The absence of the consent of one
of the spouse renders the entire sale void, including the portion of the conjugal property pertaining to the spouse
who contracted the sale.[17] Even if the other spouse actively participated in negotiating for the sale of the
property, that other spouse's written consent to the sale is still required by law for its validity. [18] The Agreement
entered into by Alfredo and Mario was without the written consent of Elvira. Thus, the Agreement is entirely
void. As regards Mario's contention that the Agreement is a continuing offer which may be perfected by Elvira's
acceptance before the offer is withdrawn, the fact that the property was subsequently donated by Alfredo to
Winifred and then sold to IDRI clearly indicates that the offer was already withdrawn.

However, we disagree with the finding of the Court of Appeals that the one-half undivided share of Alfredo in
the property was already forfeited in favor of his daughter Winifred, based on the ruling of the Cavite RTC in
the legal separation case. The Court of Appeals misconstrued the ruling of the Cavite RTC that Alfredo, being
the offending spouse, is deprived of his share in the net profits and the same is awarded to Winifred.

The Cavite RTC ruling finds support in the following provisions of the Family Code:

Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute community or
the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of
Article 213 of this Code; and

The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked
by operation of law.

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects:

x x x

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children,
the innocent spouse; (Emphasis supplied)

Thus, among the effects of the decree of legal separation is that the conjugal partnership is dissolved and
liquidated and the offending spouse would have no right to any share of the net profits earned by the conjugal
partnership. It is only Alfredo's share in the net profits which is forfeited in favor of Winifred. Article 102(4) of
the Family Code provides that "[f]or purposes of computing the net profits subject to forfeiture in accordance
with Article 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value
of the community property at the time of the celebration of the marriage and the market value at the time of its
dissolution." Clearly, what is forfeited in favor of Winifred is not Alfredo's share in the conjugal partnership
property but merely in the net profits of the conjugal partnership property.

With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer in good faith. As
found by the RTC Malabon and the Court of Appeals, IDRI had actual knowledge of facts and circumstances
which should impel a reasonably cautious person to make further inquiries about the vendor's title to the
property. The representative of IDRI testified that he knew about the existence of the notice of lis pendenson
TCT No. 5357 and the legal separation case filed before the Cavite RTC. Thus, IDRI could not feign ignorance
of the Cavite RTC decision declaring the property as conjugal.

Furthermore, if IDRI made further inquiries, it would have known that the cancellation of the notice
of lis pendens was highly irregular. Under Section 77 of Presidential Decree No. 1529,[19] the notice
of lis pendens may be cancelled (a) upon order of the court, or (b) by the Register of Deeds upon verified
petition of the party who caused the registration of the lis pendens. In this case, the lis pendens was cancelled
by the Register of Deeds upon the request of Alfredo. There was no court order for the cancellation of
the lis pendens. Neither did Elvira, the party who caused the registration of the lis pendens, file a verified
petition for its cancellation.

Besides, had IDRI been more prudent before buying the property, it would have discovered that Alfredo's
donation of the property to Winifred was without the consent of Elvira. Under Article 125[20] of the Family
Code, a conjugal property cannot be donated by one spouse without the consent of the other spouse. Clearly,
IDRI was not a buyer in good faith.

Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the reimbursement of the P18
million paid by IDRI for the property, which was inadvertently omitted in the dispositive portion of the Court of
Appeals' decision.

WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of Appeals in
CA-G.R. CV No. 74447 with the following MODIFICATIONS:

(1) We DELETE the portions regarding the forfeiture of Alfredo Gozon's one-half undivided share in favor of
Winifred Gozon and the grant of option to Winifred Gozon whether or not to dispose of her undivided share in
the property; and
(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc. jointly and
severally the Eighteen Million Pesos (P18,000,000) which was the amount paid by Inter-Dimensional Realty,
Inc. for the property, with legal interest computed from the finality of this Decision.

SO ORDERED.

Brion, Del Castillo, Abad, and Perez, JJ., concur.

[1]
Under Rule 45 of the 1997 Rules of Civil Procedure.
[2]
Rollo (G.R. No. 169900), pp. 65-128. Penned by Associate Justice Remedios A. Salazar-Fernando with Associate Justices Rosmari D. Carandang
and Monina Arevalo-Zenarosa, concurring.
[3]
Id. at 153-154.
[4]
Rollo (G.R. No. 169977), pp. 166-168.
[5]
Rollo (G.R. No. 169900), pp. 163-168.
[6]
Id. at 169-176.
[7]
Id. at 175-176.
[8]
Rollo (G.R. No. 169977), pp. 169-170.
[9]
Id. at 171-173.
[10]
See Deed of Absolute Sale dated 26 October 1994, rollo (G.R. No. 169977), pp. 174-177.
[11]
See Memorandum for Inter-Dimensional Realty, Inc., rollo (G.R. No. 169900), p. 588. In their joint memorandum, Alfredo and Winifred did not
deny receipt of full payment from IDRI and in fact prays that IDRI be considered a buyer in good faith and for value, rollo, (G.R. No. 169900), pp.
421-440.
[12]
Rollo (G.R. No. 169977), pp. 178-179.
[13]
Rollo (G.R. No. 169900), pp. 221-259.
[14]
Id. at 257-259.
[15]
Id. at 126-127.
[16]
Spouses Guiang v. CA, 353 Phil. 578 (1998).
[17]
Alinas v. Alinas, G.R. No. 158040, 14 April 2008, 551 SCRA 154, citing Homeowners Savings and Loan Bank v. Dailo, 493 Phil. 436, 442
(2005).
[18]
Jader-Manalo v. Camaisa, 425 Phil. 346 (2002).
[19]
SEC. 77. Cancellation of lis pendens. - Before final judgment, a notice of lis pendens may be cancelled upon order of the court after proper
showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to
be registered. It may also be cancelled by the Register of Deeds upon verified petition of the party who caused the registration thereof.
[20]
Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the
consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family
distress.
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. NO. 155409 June 8, 2007

VIRGILIO MAQUILAN, petitioner,

vs.
DITA MAQUILAN, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision1dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69689, which
affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the Regional Trial Court (RTC),
Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated January 21, 2002 and February 7, 2002
(ORDERS) in Civil Case No. 656.

The facts of the case, as found by the CA, are as follows:

Herein petitioner and herein private respondent are spouses who once had a blissful married life and out of
which were blessed to have a son. However, their once sugar coated romance turned bitter when petitioner
discovered that private respondent was having illicit sexual affair with her paramour, which thus, prompted the
petitioner to file a case of adultery against private respondent and the latter’s paramour. Consequently, both the
private respondent and her paramour were convicted of the crime charged and were sentenced to suffer an
imprisonment ranging from one (1) year, eight (8) months, minimum of prision correccional as minimum
penalty, to three (3) years, six (6) months and twenty one (21) days, medium of prision correccional as
maximum penalty.

Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage,
Dissolution and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with the Regional
Trial Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No. 656, imputing
psychological incapacity on the part of the petitioner.

During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE
AGREEMENT in the following terms, to wit:

1. In partial settlement of the conjugal partnership of gains, the parties agree to the following:

a. ₱500,000.00 of the money deposited in the bank jointly in the name of the spouses shall be withdrawn and
deposited in favor and in trust of their common child, Neil Maquilan, with the deposit in the joint account of the
parties.

The balance of such deposit, which presently stands at ₱1,318,043.36, shall be withdrawn and divided equally
by the parties;

b. The store that is now being occupied by the plaintiff shall be allotted to her while the bodega shall be for the
defendant. The defendant shall be paid the sum of ₱50,000.00 as his share in the stocks of the store in full
settlement thereof.

The plaintiff shall be allowed to occupy the bodega until the time the owner of the lot on which it stands shall
construct a building thereon;

c. The motorcycles shall be divided between them such that the Kawasaki shall be owned by the plaintiff while
the Honda Dream shall be for the defendant;

d. The passenger jeep shall be for the plaintiff who shall pay the defendant the sum of ₱75,000.00 as his share
thereon and in full settlement thereof;

e. The house and lot shall be to the common child.

2. This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties that have
not been mentioned;

xxxx

The said Compromise Agreement was given judicial imprimatur by the respondent judge in the
assailed Judgment On Compromise Agreement, which was erroneously dated January 2, 2002.2

However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of the
Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by the respondent
judge on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the
consequential effects of the Compromise Agreement.
The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned Omnibus
Motion.

Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was denied in the
assailed Order dated February 7, 2002.3 (Emphasis supplied)

The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of Court
claiming that the RTC committed grave error and abuse of discretion amounting to lack or excess of jurisdiction
(1) in upholding the validity of the Compromise Agreement dated January 11, 2002; (2) when it held in its
Order dated February 7, 2002 that the Compromise Agreement was made within the cooling-off period; (3)
when it denied petitioner’s Motion to Repudiate Compromise Agreement and to Reconsider Its Judgment on
Compromise Agreement; and (4) when it conducted the proceedings without the appearance and participation of
the Office of the Solicitor General and/or the Provincial Prosecutor.4

On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction of the
respondent of the crime of adultery does not ipso facto disqualify her from sharing in the conjugal property,
especially considering that she had only been sentenced with the penalty of prision correccional, a penalty that
does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her
property and to dispose of such property inter vivos; that Articles 43 and 63 of the Family Code, which pertain
to the effects of a nullified marriage and the effects of legal separation, respectively, do not apply, considering,
too, that the Petition for the Declaration of the Nullity of Marriage filed by the respondent invoking Article 36
of the Family Code has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family
Code; that, although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in the
instant case since no petition to that effect was filed by the petitioner against the respondent; that the spouses
voluntarily separated their property through their Compromise Agreement with court approval under Article
134 of the Family Code; that the Compromise Agreement, which embodies the voluntary separation of
property, is valid and binding in all respects because it had been voluntarily entered into by the parties; that,
furthermore, even if it were true that the petitioner was not duly informed by his previous counsel about the
legal effects of the Compromise Agreement, this point is untenable since the mistake or negligence of the
lawyer binds his client, unless such mistake or negligence amounts to gross negligence or deprivation of due
process on the part of his client; that these exceptions are not present in the instant case; that the Compromise
Agreement was plainly worded and written in simple language, which a person of ordinary intelligence can
discern the consequences thereof, hence, petitioner’s claim that his consent was vitiated is highly incredible;
that the Compromise Agreement was made during the existence of the marriage of the parties since it was
submitted during the pendency of the petition for declaration of nullity of marriage; that the application of
Article 2035 of the Civil Code is misplaced; that the cooling-off period under Article 58 of the Family Code has
no bearing on the validity of the Compromise Agreement; that the Compromise Agreement is not contrary to
law, morals, good customs, public order, and public policy; that this agreement may not be later disowned
simply because of a change of mind; that the presence of the Solicitor General or his deputy is not indispensable
to the execution and validity of the Compromise Agreement, since the purpose of his presence is to curtail any
collusion between the parties and to see to it that evidence is not fabricated, and, with this in mind, nothing in
the Compromise Agreement touches on the very merits of the case of declaration of nullity of marriage for the
court to be wary of any possible collusion; and, finally, that the Compromise Agreement is merely an agreement
between the parties to separate their conjugal properties partially without prejudice to the outcome of the
pending case of declaration of nullity of marriage.

Hence, herein Petition, purely on questions of law, raising the following issues:

I.

WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN

STILL SHARE IN THE CONJUGAL PARTNERSHIP;

II

WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF WHOM

WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE
CONJUGAL PROPERTY, VALID AND LEGAL;

III
WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-
REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE
DISQUALIFIED AND PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY;

IV

WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY FROM

SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL INTERDICTION.5

The petitioner argues that the Compromise Agreement should not have been given judicial imprimatur since it
is against law and public policy; that the proceedings where it was approved is null and void, there being no
appearance and participation of the Solicitor General or the Provincial Prosecutor; that it was timely repudiated;
and that the respondent, having been convicted of adultery, is therefore disqualified from sharing in the conjugal
property.

The Petition must fail.

The essential question is whether the partial voluntary separation of property made by the spouses pending the
petition for declaration of nullity of marriage is valid.

First. The petitioner contends that the Compromise Agreement is void because it circumvents the law that
prohibits the guilty spouse, who was convicted of either adultery or concubinage, from sharing in the conjugal
property. Since the respondent was convicted of adultery, the petitioner argues that her share should be forfeited
in favor of the common child under Articles 43(2)6 and 637 of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from sharing
in the conjugal property; and because the Compromise Agreement is void, it never became final and executory.

Moreover, the petitioner cites Article 20358 of the Civil Code and argues that since adultery is a ground for legal
separation, the Compromise Agreement is therefore void.

These arguments are specious. The foregoing provisions of the law are inapplicable to the instant case.

Article 43 of the Family Code refers to Article 42, to wit:

Article 42. The subsequent marriage referred to in the preceding Article 9 shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to
the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed.

where a subsequent marriage is terminated because of the reappearance of an absent spouse; while Article 63
applies to the effects of a decree of legal separation. The present case involves a proceeding where the nullity of
the marriage is sought to be declared under the ground of psychological capacity.

Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially divided the
properties of the conjugal partnership of gains between the parties and does not deal with the validity of a
marriage or legal separation. It is not among those that are expressly prohibited by Article 2035.

Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the law
prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and
jurisprudence do not impose such disqualification.

Under Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient
cause, subject to judicial approval. The questioned Compromise Agreement which was judicially approved is
exactly such a separation of property allowed under the law. This conclusion holds true even if the proceedings
for the declaration of nullity of marriage was still pending. However, the Court must stress that this voluntary
separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other
persons with pecuniary interest pursuant to Article 136 of the Family Code.
Second. Petitioner’s claim that since the proceedings before the RTC were void in the absence of the
participation of the provincial prosecutor or solicitor, the voluntary separation made during the pendency of the
case is also void. The proceedings pertaining to the Compromise Agreement involved the conjugal properties of
the spouses. The settlement had no relation to the questions surrounding the validity of their marriage. Nor did
the settlement amount to a collusion between the parties.

Article 48 of the Family Code states:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that the evidence is not fabricated or suppressed. (Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x

xxxx

(e) Where no defaults allowed.— If the defending party in action for annulment or declaration of nullity 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 if there is no collusion, to intervene for the State in order to
see to it that the evidence submitted is not fabricated. (Emphasis supplied

Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to ensure that
the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of evidence. 10 While the
appearances of the Solicitor General and/or the Public Prosecutor are mandatory, the failure of the RTC to
require their appearance does not per se nullify the Compromise Agreement. This Court fully concurs with the
findings of the CA:

x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor General
and/or State prosecutor in all proceedings of legal separation and annulment or declaration of nullity of
marriage is to curtail or prevent any possibility of collusion between the parties and to see to it that their
evidence respecting the case is not fabricated. In the instant case, there is no exigency for the presence of the
Solicitor General and/or the State prosecutor because as already stated, nothing in the subject compromise
agreement touched into the very merits of the case of declaration of nullity of marriage for the court to be wary
of any possible collusion between the parties. At the risk of being repetiti[ve], the compromise agreement
pertains merely to an agreement between the petitioner and the private respondent to separate their conjugal
properties partially without prejudice to the outcome of the pending case of declaration of nullity of marriage. 11

Third. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the Revised
Penal Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. – Civil interdiction shall deprive the offender during the time of his sentence of the
rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority,
of the right to manage his property and of the right to dispose of such property by any act or any conveyance
inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium and
maximum periods. Article 333 should be read with Article 43 of the same Code. The latter provides:

Art. 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall carry with it
that of suspension from public office, from the right to follow a profession or calling, and that of perpetual
special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen
months. The offender shall suffer the disqualification provided in this article although pardoned as to the
principal penalty, unless the same shall have been expressly remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the accessory
penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of
such property inter vivos.
Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the
consequential effects of the compromise agreement, and that, on this basis, he may repudiate the Compromise
Agreement. The argument of the petitioner that he was not duly informed by his previous counsel about the
legal effects of the voluntary settlement is not convincing. Mistake or vitiation of consent, as now claimed by
the petitioner as his basis for repudiating the settlement, could hardly be said to be evident. In Salonga v. Court
of Appeals,12 this Court held:

[I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any act
performed by a lawyer within the scope of his general or implied authority is regarded as an act of his client.
Consequently, the mistake or negligence of petitioners' counsel may result in the rendition of an unfavorable
judgment against them.

Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross negligence of
counsel deprives the client of due process of law, or when its application "results in the outright deprivation of
one's property through a technicality." x x x x13

None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED with
MODIFICATION that the subject Compromise Agreement is VALID without prejudice to the rights of all
creditors and other persons with pecuniary interest in the properties of the conjugal partnership of gains.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice<brchairperson< p="">

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

</brchairperson<>

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s attestation, it is hereby
certified that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Acting Chief Justice

Footnotes
1
Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Roberto A. Barrios (now deceased) and Edgardo F. Sundiam,
concurring.
2
The Compromise Agreement is dated January 11, 2002.
3
Rollo, pp. 29-31.
4
Rollo, p. 32.
5
Rollo, pp. 19-20.
6
Article 43 reads:
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:
 xxxx
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either
spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property
shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in
default of children, the innocent spouse;
x x x x (emphasis supplied)
7
Article 63 reads:
Art. 63. The decree of legal separation shall have the following effects:
xxxx
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to
any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the
provisions of Article 43(2);
x x x x (emphasis supplied)
8
Article 2035 reads:
Art. 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
(emphasis supplied)
9
Article 41 reads:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set
forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
10
See Republic v. Cuison-Melgar, G.R. No. 139676, March 31, 2006, 486 SCRA 177, 187.
11
Rollo, p. 39.
12
336 Phil. 514 (1997).
13
Id. at 526-527.

387 Phil. 915

FIRST DIVISION

[ G.R. No. 139789. May 12, 2000 ]

ERLINDA K. ILUSORIO, PETITIONER, VS. ERLINDA I. BILDNER AND SYLVIA K. ILUSORIO,

JOHN DOE AND JANE DOE, RESPONDENTS.

[G.R. No. 139808]

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, AND SYLVIA ILUSORIO, PETITIONERS,

VS. COURT OF APPEALS AND ERLINDA K. ILUSORIO, RESPONDENTS.

DECISION

PARDO, J.:

May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The
answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus.

A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which the rightful
custody of a person is withheld from the one entitled thereto.[2]

"Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to,
and receive whatsoever the court or judge awarding the writ shall consider in that behalf." [3]

It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those
who may be imprisoned without sufficient cause.[4] It is issued when one is deprived of liberty or is wrongfully
prevented from exercising legal custody over another person.[5]
The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its
resolution[8] dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano
Ilusorio and enforce consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio[9] is to annul that portion of the decision of the Court of
Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of
Appeals from enforcing the visitation rights.

The undisputed facts are as follows:

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For
many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club.

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period
of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio
Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City.

Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio
Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39).

On December 30, 1997, upon Potenciano’s arrival from the United States, he stayed with Erlinda for about five
(5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that during this time, their mother
gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his
doctor in New York, U.S.A. As a consequence, Potenciano’s health deteriorated.

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition [10] for guardianship
over the person and property of Potenciano Ilusorio due to the latter’s advanced age, frail health, poor eyesight
and impaired judgment.

On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to
Antipolo City and instead lived at Cleveland Condominium, Makati.

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of
lawyer Potenciano Ilusorio. She alleged that respondents[11] refused petitioner’s demands to see and visit her
husband and prohibited Potenciano from returning to Antipolo City.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which
reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered:

"(1) Ordering, for humanitarian consideration and upon petitioner’s manifestation, respondents Erlinda K.
Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of Cleveland Condominium or anywhere in its place,
his guards and Potenciano Ilusorio’s staff especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorio’s wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors
thereof, under penalty of contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued be recalled and the herein petition for habeas
corpus be DENIED DUE COURSE, as it is hereby DISMISSED for lack of unlawful restraint or detention of
the subject of the petition.

"SO ORDERED."[12]
Hence, the two petitions, which were consolidated and are herein jointly decided.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention, [13] or by
which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person
continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due
process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of
freedom originally valid has later become arbitrary.[14] It is devised as a speedy and effectual remedy to relieve
persons from unlawful restraint, as the best and only sufficient defense of personal freedom.[15]
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint, and to relieve a person therefrom if such restraint is illegal.[16]

To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of
freedom of action.[17] The illegal restraint of liberty must be actual and effective, not merely nominal or moral.
[18]

The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano
Ilusorio’s liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86
years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind
does not hinge on age or medical condition but on the capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the
Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear
that he did not object to seeing them.

As to lawyer Potenciano Ilusorio’s mental state, the Court of Appeals observed that he was of sound and alert
mind, having answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices
revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some
of his family members but these are choices which exclusively belong to Potenciano. He made it clear before
the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration,
and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of
visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say,
this will run against his fundamental constitutional right.

The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas
corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subject’s
sanity.

When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under
penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is
unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but
the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at
liberty to do so without threat of any penalty attached to the exercise of his right.

No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be
enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is
a matter beyond judicial authority and is best left to the man and woman’s free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar
as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur
.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

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 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.

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").

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.

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 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:

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 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.

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)

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 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.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

Footnotes
1
The latter was substituted by her heirs when she died during the pendency of the case in the trial court.
2
The original complaint included the Roman Catholic Church as a defendant, sought to be enjoined from acting on a petition for the
ecclesiastical annulment of the marriage between Pastor Tenchavez and Vicenta Escaño; the case against the defendant Church was
dismissed on a joint motion.
3
In the present Civil Code the contrary rule obtains (Art. 53).
4
She was naturalized as an American citizen only on 8 August 1958.